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 Oct 06, 2015

Study Links Industrial Noise Exposure and Heart Disease
Tue, 6 Oct 2015 08:02:46 - Pacific Time
People with long-term exposure to loud noise at work or in leisure activities may be at increased risk of heart disease, according to a new study summarized in Reuters Health. Researchers found the strongest link in working-age people with high-frequency hearing loss, which is typically the result of chronic noise exposure.

"Compared with people with normal high-frequency hearing, people with bilateral high-frequency hearing loss were approximately two times more likely to have coronary heart disease," said lead author Dr. Wen Qi Gan of the University of Kentucky College of Public Health in Lexington.

Past research has already linked noise exposure, especially in workplaces, to coronary heart disease, high blood pressure and other illnesses, Gan and his colleagues write in Occupational and Environmental Medicine. But many of these studies lacked individual information about actual noise exposure, relying instead on average decibel levels in the person’s environment. High-frequency hearing loss, the researchers say, is a better indicator of exposure to loud noise over time.

To investigate the connection with heart disease, the researchers looked at data on 5,223 participants in national health surveys between 1999 and 2004. Participants ranged in age from 20 to 69 at the time they were surveyed.Overall, people with high-frequency hearing loss in both ears were about twice as likely to have coronary heart disease compared to those with normal high-frequency hearing. Among those age 50 and under, who were also most likely to be exposed to loud noise at work, the heart disease risk was increased four-fold.

There was no link to heart disease among people with one-sided hearing loss or loss of lower-frequency hearing, the study team notes, further supporting the idea that noise exposure is the culprit.

The study only looked at people at one time point, however, and cannot prove that noise or hearing loss are direct causes of heart disease. The researchers also acknowledge that they relied on study participants’ own recollections about their work and leisure-time noise exposure.

Nonetheless, Gan said, accumulating evidence suggests that exposure to loud noise can increase the risk of coronary heart disease. Read More...

Walking Workstations Reduce Muscle Pain
Tue, 6 Oct 2015 08:02:40 - Pacific Time
A researcher at McGill University in Quebec says her study of treadmill workstations show them to be potentially more beneficial and able to help diminish work-related musculoskeletal disorders. Kinesiology researchers are studying ways to reduce or even prevent muscular and skeletal stresses and pains. The study as summarized in Reuters Health shows that walking while working on a computer may lead to healthier muscular patterns. The research was published this year in the European Journal of Applied Physiology.

"There are studies recently that show that you lose weight because you would exert more calories, but we were more interested in knowing about the muscles that do the work. The muscles in the neck/shoulder region are the ones that feel the pain and experience fatigue," says Julie Cote, an Associate Professor in the Department of Kinesiology and Physical Education whose research focuses on biomechanics and ergonomics.

Cote's lab asked 20 healthy participants to complete a 90-minute typing task on a computer while sitting or walking on a treadmill. This typing task measured both speed and accuracy. "We found out that in terms of performance - typing performance - there was no difference between how fast or how many mistakes people were making whether they were walking or seated," said Cote.

For the experiment, they placed electrodes on certain parts of the body to measure muscle activity in the neck, shoulders, forearms, wrists and lower back. Cote said the electrodes collected three points of data - blood flow, muscle activity and movement or posture - with the help of motion capture. Her lab asked participants to rate their level of discomfort while performing tasks. Results showed that upper limb discomfort was higher when the subjects were sitting and increased the longer they sat.

"We found in terms of muscle activity there were patterns that seemed to be healthier in the neck and shoulder while people were walking," said Cote. They discovered that there was lower, but more variable, muscle activity when subjects were walking compared with sitting, all of which translated into less discomfort. When people were walking, "the muscles worked together in a more independent way," said Cote

Cote's lab is in the process of preparing results of desk standing versus sitting, to submit for publication, but she is already convinced that the former is healthier for workers. "What I can say in terms of performance, people seem to be performing better when they were standing," said Cote. Read More...

LA Compounding Pharmacy Owners Indicted for Drug Trafficking
Mon, 5 Oct 2015 10:03:27 - Pacific Time
Two brothers were arrested on federal drug trafficking and money laundering charges that allege they used a bogus pharmacy to obtain and distribute large quantities of prescription narcotics, including OxyContin, to black-market customers. The two men charged in a 40-count indictment are Berry Kabov, 44, and his brother, 32 year old Dalibor Kabov (also known as "Dabo"). The indictment also names Global Compounding, LLC, a storefront pharmacy off Santa Monica Boulevard in Brentwood, as a defendant.

Authorities allege that the Kabov brothers operated Global Compounding as a bogus pharmacy to facilitate the acquisition of prescription drugs from the wholesale market. The DEA claims that the Kabov brothers purchased massive quantities of drugs, including nearly 100,000 in oxycodone pills, as well as tens of thousands of pills of hydrocodone (commonly sold under the brand name Vicodin) and hydromorphone (commonly sold under the brand name Dilaudid).

The DEA claims that Global Compounding was the top purchaser of oxycodone among all pharmacies in the Los Angeles area in 2014, and that it ordered three times more oxycodone than the second-largest purchaser. An inspection at Global Compounding by the California Board of Pharmacy in January 2014 that led investigators to conclude "that Global Compounding is not a legitimate pharmacy and in fact is a façade for a drug trafficking operation."

A search warrant details how investigators seized parcels containing thousands of hidden oxycodone pills that the Kabov brothers allegedly attempted to ship to customers. The customers in turn made cash deposits into Kabov-controlled bank accounts or simply shipped bulk cash to the brothers in Southern California. During recorded calls with an informant Berry Kabov explained that he could sell oxycodone in New York for as much as $50 per pill.

The indictment also alleges that the brothers engaged in money laundering and the structuring of cash transactions to avoid federal reporting requirements. The search warrant identifies more than $1.5 million in structured cash deposits into multiple bank accounts controlled by the Kabov brothers. The affidavit details extravagant expenditures, including private jets from the Los Angeles area to Las Vegas and other luxury items. At the same time federal prosecutors say, the brothers were telling the IRS that the business was making little in profits or losing money. "They claimed to be paupers when they were living like kings," said Assistant U.S. Atty. Ryan Weinstein. Read More...

Santa Clara Deputy Sheriff Arrested for Comp Fraud
Mon, 5 Oct 2015 10:03:21 - Pacific Time
A Santa Clara County correctional deputy was arrested Friday in San Jose and charged with workers' compensation fraud according to officials from the Santa Clara County Sheriff's Office, which oversees the county jails.

An arrest warrant was executed for Santa Clara County Correctional Deputy Mark Navarrete, who is accused of workers' compensation fraud and allegedly violating California Penal Code 550(a)(1) and Insurance Code 1871.4 (a)(1) and (2). Both are felonies. Navarrete sustained an off-duty injury playing softball but officials allege he fraudulently filed claims that his injury occurred in the workplace while on duty. Officials say Navarette has been on paid administrative leave since September 17. He was a member of the sheriff’s office for more than 10 years, Navarette was booked into Santa Clara County Main Jail.

The arrest was part of a widening array of internal investigations magnified by the beating death of a mentally ill inmate. The Navarrete case predates the investigation into the deadly Aug. 26 beating of Michael Tyree at the Main Jail, which spurred murder charges against three other correctional deputies and prompted elected officials to promise a host of reforms of the county's jail facilities, with pointed attention at misconduct by jail staffers.

To date, five correctional deputies -- including the three in the Tyree case --have been arrested, and three more are on leave in connection with criminal investigations launched by the Sheriff's Office based on alleged misconduct.  All eight officers -- including the local correctional officers' union president -- are on paid administrative leave. More arrests could follow: Smith said this week that detectives are reviewing more than 100 complaints -- for use of force or otherwise -- filed since Tyree died.

Because of uncertainty about who might get caught in what officials admit is a wide investigatory net, the agency has taken several extraordinary steps that include moving key investigators out of the sheriff's headquarters to an off-site location to physically restrict access to sensitive intelligence. Read More...

Court of Appeal Rules on WCAB Jurisdiction Over NBA Team
Fri, 2 Oct 2015 11:35:21 - Pacific Time
Durand Macklin claimed a CT injury as a result of his employment as a professional basketball player while employed by multiple NBA teams.

The WCJ concluded there was subject matter jurisdiction over Macklin’s claim because at least a portion of Macklin’s injury occurred within the state of California. The WCJ also said it had personal jurisdiction over the three NBA defendants (Atlanta Hawks, petitioner New York Knickerbockers, and Los Angeles Clippers). Each of the NBA defendants engaged in basketball business activities within California. The WCJ found injury to his back and elsewhere, and rejected defenses such as statute of limitations and laches. He was awarded 76 percent disability with no apportionment.

The Knickerbockers sought reconsideration claiming there was no subject matter jurisdiction to make the award. The WCAB affirmed the award. The Court of Appeal also affirmed in the published case of New York Knickerbockers v WCAB (Macklin).

On appeal, the Knickerbockers argued that Macklin’s one game in California as a New York Knick, in which he suffered no injury, was de minimis and therefore could not create a legitimate interest for California in his injuries. The team relied on this court’s decision in Federal Ins. Co. v. Workers’ Comp. Appeals Bd. (2013) 221 Cal.App.4th 1116 (Johnson).

A dispositive factor here is that, unlike in Johnson, Macklin played for a California team for a portion of the period of the cumulative injury. That Macklin, while employed by petitioner and Atlanta, participated in seven games and additional practices - at least one lasting two and one-half hours in California - is a factor in determining whether the connection between his injury and California is sufficient to conclude that the application of California workers’ compensation law here is reasonable. Because of the employment by a California-based team, the court did not have to determine if the other activities in California are sufficient by themselves to make the application of California workers’ compensation law reasonable, although those activities are more than the one game that Johnson concluded was de minimis. Read More...

Claims Administrator Implicated in $1.5 Million NFL Fraud Case
Fri, 2 Oct 2015 11:35:17 - Pacific Time
A West Sacramento woman has pleaded guilty to wire fraud in a case that involved filing false workers’ compensation claims for a former National Football League player. Kimberly Jones, 40, entered the plea and agreed to submit to a restitution order of at least $1.5 million, according to a U.S. Attorney’s Office news release.

Court documents indicate that from September 2001 through August 2011, Jones was employed as a senior claims representative, or claims adjuster for a third-party administrator that managed, among other things, workers’ compensation claims in California on behalf of Pennsylvania Manufacturers’ Association Insurance Group, or PMA.

Jones’ co-defendant, Marcus Buckley, 42, of Weatherford, Texas, played professional football in the National Football League between 1993 and 1999 with the New York Giants. During this time, the Giants had workers’ compensation insurance coverage through PMA.

In 2006, Buckley filed a worker’s compensation claim against the Giants for cumulative stress injuries sustained while playing football, in part, in California. In November 2010, the claim was settled for $300,000.

After his claims had been settled, however, between late 2010 and June 2011, Buckley allegedly prepared and filed numerous additional requests for reimbursement under his closed claim. He prepared fictitious invoices and statements from medical providers for medical services purportedly provided to him and fictitious credit collection notices from collection agencies purportedly seeking payment from Buckley for past due medical bills. Buckley sent the fictitious invoices, statements, and credit collection letters to Jones who had checks made payable to Buckley. In total, Buckley received more than $1,588,000 to which he was not entitled.

Charges against Buckley are pending. Jones it to be sentenced January 7 2016 and faces a maximum sentence of 20 years in prison, a fine of $250,000 or twice the gross gain or loss in the case, and a three-year term of supervised release. This case is the product of an investigation by the Federal Bureau of Investigation. Assistant United States Attorney Michael M. Beckwith is prosecuting the case. Read More...

Herbicide Litigation May Be Precursor to Comp Cancer Claims
Thu, 1 Oct 2015 08:18:35 - Pacific Time
A U.S. farm worker and a horticultural assistant have filed lawsuits claiming Monsanto Co.'s Roundup herbicide caused their cancers. According to the report in Reuters Health, the lawsuits come six months after the World Health Organization's cancer research unit said it was classifying glyphosate, the active weed-killing ingredient in Roundup and other herbicides, as "probably carcinogenic to humans."

One suit, filed in U.S. District Court in Los Angeles on Sept. 22, names as plaintiff 58-year-old Enrique Rubio, a former farm worker in California, Texas and Oregon who over several years labored in fields of cucumbers, onions and other vegetable crops. His duties included spraying fields with Roundup and other pesticides before Rubio was diagnosed with bone cancer in 1995, the lawsuit states.

A separate lawsuit making similar claims was filed the same day in federal court in New York by Judi Fitzgerald, 64, who claims she was exposed in the 1990s to Roundup when she worked at a horticultural products company. Fitzgerald was diagnosed with leukemia in 2012.

Attorney Robin Greenwald, one of the attorneys who brought Rubio's case, said on Tuesday that she expects more lawsuits to follow because Roundup is the most widely used herbicide in the world and the WHO cancer classification gives credence to long-held concerns about the chemical. "I believe there will be hundreds of lawsuits brought over time," said Greenwald.

Monsanto spokeswoman Charla Lord said that the claims are without merit and that glyphosate is safe for humans when used as labeled. "Decades of experience within agriculture and regulatory reviews using the most extensive worldwide human health databases ever compiled on an agricultural product contradict the claims in the suit which will be vigorously defended."

WHO scientists cited several studies showing cancer links to glyphosate, though Monsanto has said the findings are wrong. Since the WHO action, some product liability lawyers have been seeking out plaintiffs for potential class-action lawsuits over glyphosate, postings on legal websites show. Read More...

"Price Gouging" Drug Companies Face Increasing Political Pressure
Thu, 1 Oct 2015 08:18:27 - Pacific Time
The powerful pharmaceutical industry is doing its best to hold back the tide, but mounting public outrage over excessive pricing of both old and new drugs may prompt government intervention. The controversy is already playing out on the presidential campaign trail and on Capitol Hill where House Democrats are demanding Valeant Pharmaceuticals provide documentation to justify the soaring costs of its drugs.

Hillary Clinton’s campaign purchased ads in Iowa and New Hampshire this week on the topic of her role in forcing Turing Pharmaceuticals, to partially roll back massive price increases. Clinton accused the company’s 32-year old CEO, Martin Shkreli, of "price gouging" on Twitter.

Billionaire Donald Trump, the GOP presidential frontrunner, also jumped into the act, calling Shkreli a "spoiled brat" for boosting the cost of the drug, Daraprim, from $13.50 to $750 a pill.

Shkreli, a hedge fund manager, has become the new symbol of industry greed and insensitivity. He recently announced he would cut back the price, without saying by how much.

At one time critics focused much of their wrath on Gilead Sciences Inc., the California based pharmaceutical company that charged as much as $1,000 a pill for the new wonder drug Sovaldi for treating the potentially lethal Hepatitis-C virus. The cost of the drug blew a hole in the budgets of the Department of Veterans Affairs, Medicare and Medicaid and forced federal and state officials to ration the availability of the popular drug.

Now industry critics have two easy targets to choose from - including Turing and Valeant, a major firm that jacked up the price of two heart medicines three to six fold the same day it acquired the rights. In both cases, the companies weren’t marketing newly developed drugs, which may have cost tens of millions of dollars to develop but drugs that have been on the market for many decades - making it far more difficult to justify a huge increase in price.

All 18 Democratic members of the House Committee on Oversight and Government Reform have asked the GOP chairman, Rep. Jason Chaffetz (R-UT), to subpoena Valeant and compel company officials to provide documents justifying its price increases, according to the Washington Post. Democrats want Shkreli and Michael Pearson, the Valeant CEO, to testify before the committee.

The company earlier this month refused to respond to a request from Democratic Rep. Elijah E. Cummings of Maryland and Sen. Bernie Sanders of Vermont to explain the decision to raise the prices of Nitropress, a drug used to treat congestive heart failure, and Isuprel, a drug used to treat irregular heart rhythms.

PhRMA, the prescription drug industry’s main lobbying arm, warned recently that proposals like those of Clinton and Sanders to cap skyrocketing drug costs "would restrict patients’ access to medicines, result in fewer new treatments for patients, cost countless jobs across the country and end our nation’s standing as the world leader in biomedical innovation." Read More...

DA Says Uwaydah Defendants Fraud "Continue Today"
Wed, 30 Sep 2015 06:33:49 - Pacific Time
The Los Angeles District Attorney's Office outlined the roles 11 co-defendants allegedly played in the operation of a medical fraud scheme that netted defendants hundreds of millions of dollars. The story in CBS News reports that prosecutors describe a sprawling fraud scheme where 11 of the 15 defendants "billed hundreds of millions of dollars in fraudulent insurance claims, mostly involving workers compensation, that ranged from billing for services never provided to fraudulent surgeries." Fraudulent billings, prosecutors say, that "continue today."

At least 15 defense attorneys packed Judge Kathleen Kennedy's downtown Los Angeles courtroom for a bail hearing for the 15 alleged co-conspirators. Bailiffs had to deny access to many in the overflowed courtroom. Bail bondsmen filled the aisles, among them the Beverly Hills bail bondsmen to rappers including Snoop Dog and Dr. Dre, and Josh Herman, who assisted Park with bail that sprung her for the murder trial. At one point Judge Kennedy mused that she had half the sheriff's department in her courtroom.

The prosecution set a bail schedule for each of the 11 defendants at close to or exceeding $20 million. The four defendants in the related indictment have bail ranging from $1 million to nearly $3 million. In Friday's hearing, defense attorneys argued for bail reduction calling the schedule "astronomical" and "unfair."

Former Los Angeles County District Attorney Steve Cooley has referred to as "non-traditional" organized crime. "It's not La Cosa Nostra, instead it is organized criminals who are smart enough to take advantage of society's weaknesses," says Cooley. "These kinds of frauds are rampant and thoroughly penetrate the American health care system," Cooley says. "Given the amount of money committed to health care in the United States, this is where the organized crime goes, it follows the money."

Prosecutors contend that in 2009, Uwaydah's fraud enterprise reached the stage that Uwaydah and other charged defendants including Park "conspired to take over a distressed bank... in order to facilitate the laundering of their criminal proceeds."  Prosecutors accuse Park of controlling fraudulent billing practices for Uwaydah's business empire, "placing her name on shell companies and shell bank accounts ... designed to hide Uwaydah's identity." They also allege she attended weekly meetings with Uwaydah and other associates to discuss "hiding assets from creditors, insurance companies and law enforcement."

At one point, the prosecution presented documents alleging that even last Tuesday, the very same day the 15 defendants were arraigned in court, the medical conspiracy still continued to churn out fraudulent medical billings and services while the alleged conspirators were in custody. Read More...

Jury Convicts San Quentin Worker For Comp Fraud
Wed, 30 Sep 2015 06:33:44 - Pacific Time
After a nearly month long trial, Hosea Morgan, a Vallejo resident and former San Quentin State Prison worker, was found guilty of five charges including several acts of fraud and grand theft related to a pair of worker’s compensation claims filed in 2009. According to the report in the Times Herald Online, jurors heard from numerous witnesses in the case that had involvement in processing his claims, and later, investigating and documenting his daily life while he collected money from the State Compensation Insurance Fund.

Morgan became a correctional officer in 1985, and later, a counselor in 1995 mainly typing and moving files. It was during his time as correctional officer, he told an internal affairs investigator, that altercations were almost daily. Even later in his career as a counselor, altercations were "irregular, but frequent." What was missing from these claims, investigators testified, was any supporting documentation, such as incident reports. When Morgan submitted his first worker’s compensation claim in 2009, he alleged arthritis in the "general parts of his body," and injuries to his wrist, hip, ankles and knees.

These claims raised suspicion in the office of State Fund claims manager Andrea Guzman when a flier for a play was faxed to her. Starring in the production was Morgan. Guzman hired a private investigator to attend the play, "Misery Loves Company," at Fairfield’s downtown Center for Creative Arts and record it. Jurors watched video of the performance in which it appeared Morgan played the role of a highly animated elderly gentleman who occasionally sang and danced. It was one of two separate theater performances that investigators attended and recorded.

By 2011, Morgan was collecting two-thirds of his regular take home pay due to a reported disability, according to testimony. However, investigators had already gathered video evidence of Morgan at a Vallejo schoolyard running his children through basketball drills.

In 2011, investigators collected video recordings from a Vallejo health club Morgan belonged to. The videos, which totaled more than seven hours worth and played before the jury, showed what investigators claimed was Morgan playing four-on-four pick-up basketball.

Morgan could face up to six years, eight months in state prison when he returns to court Nov. 10 for sentencing. Read More...

Past Week News Archive

Misclassification Class Actions Now Aimed at DoorDash and GrubHub: Tue, 29 Sep 2015 08:34:49 - Pacific Time: Read More...

Luxury Auction Scheduled as Fraudsters Sit in Jail: Tue, 29 Sep 2015 08:27:15 - Pacific Time: Read More...

Court of Appeal Limits Olgivie Rating Methods: Mon, 28 Sep 2015 08:33:42 - Pacific Time: Read More...

Owner and Foreman Charged With Manslaughter for OSHA Violations: Mon, 28 Sep 2015 08:33:37 - Pacific Time: Read More...

"Lien Finder" Website Created to Clean Up Angelotti Aftermath: Fri, 25 Sep 2015 09:38:22 - Pacific Time: Read More...

CDI, UCSF and Consumer Reports Launch Online Shopping for Docs: Fri, 25 Sep 2015 09:38:17 - Pacific Time: Read More...

IOM Report Says Diagnostic Errors Cause 10% of Patient Deaths: Thu, 24 Sep 2015 07:26:18 - Pacific Time: Read More...

Postoperative Telehealth Visits Found Effective in VA Study: Thu, 24 Sep 2015 07:26:13 - Pacific Time: Read More...

Safety Shoe Warranty Violates Comp Law: Wed, 23 Sep 2015 09:24:27 - Pacific Time: Read More...

Companies Convert Old Generic Meds to High Priced "Specialty Drugs": Wed, 23 Sep 2015 09:24:18 - Pacific Time: Read More...