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Workers' Compensation Daily News for Apr 20, 2014

Successful Comp Case May Toll Statute of Limitations in Civil Case
Fri, 18 Apr 2014 11:15:51 - Pacific Time
In May 2008, Linda Hopkins fell from an outdoor balcony at the offices of her employer, Perfect Smile Dental Ceramics, Inc. As a result of the injuries she suffered in the fall, she was unable to work. Jurek Kedzierski and Margo Kedzierski own Perfect Smile and also own the office building in which Perfect Smile is located. Shortly after her accident, Hopkins began receiving workers' compensation benefits. In April 2009, she filed a claim with the Workers' Compensation Appeals Board, seeking additional benefits.

In September 2010, brought a negligence/premises liability claim against Jurek Kedzierski, as trustee of the Jerzy Jurek Kedzierski and Margo Kedzierski Revocable Living Trust (the Trust), and against Margo, as an individual, and a negligence claim against the Trust. Hopkins alleged that that the statute of limitations on these claims had been equitably tolled while she pursued her April 2009 workers' compensation claim. Hopkins also alleged that respondents were equitably estopped from asserting a statute of limitations defense based on settlement negotiations that she claimed had taken place prior to her filing the original complaint in this action.

Hopkins's former counsel, Eric Welch. testified that he received information in September 2009 that led him to believe that Perfect Smile owned the building where the accident occurred. In October 2009, Attorney Welch sent a demand letter to Jurek and Perfect Smile. Golden Eagle Insurance, the insurer for both Perfect Smile and the Kedzierskis, informed Welch that it was investigating Hopkins's claim. On March 8, 2010, Golden Eagle notified Welch that it was denying the claim.

The trial court determined that neither doctrine applied. Based on these findings, the court concluded that Hopkins's complaint was not timely filed. The trial court entered judgment in favor of respondents and Hopkins appealed. The Court of Appeal remanded the case to the trial court for factual findings as to whether Hopkins demonstrated the elements of equitable tolling in the published decision of Hopkins v .Kedzierski.

The equitable tolling of statutes of limitations is a judicially created, nonstatutory doctrine. It is 'designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations - timely notice to the defendant of the plaintiff's claims - has been satisfied. Where applicable, the doctrine will suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.

In Elkins v. Derby (1974) 12 Cal.3d 410, 414 (Elkins), the Supreme Court held that the doctrine of equitable tolling may apply to toll the statute of limitations on a claim during the period in which a plaintiff pursues another remedy for the harm that the plaintiff suffered. The Elkins court adopted a line of cases in which courts had concluded that "if the defendant is not prejudiced thereby, the running of the limitations period is tolled '[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.' " (Id. at p. 414, quoting Myers v. County of Orange (1970) 6 Cal.App.3d 626, 634 (Myers).)

In Elkins, the plaintiff suffered an injury in September 1969 while working on the defendants' premises. Approximately 10 months after the injury, the plaintiff filed an application for workers' compensation benefits against the defendants. A workers' compensation referee determined that the plaintiff was not an "employee" of the defendants under the applicable Labor Code provisions at the time of his injury and concluded that he was therefore ineligible for workers' compensation benefits. The plaintiff filed a personal injury action seeking recovery for the same injury that served as the basis of his workers' compensation claim. On appeal, the Elkins court held that the statute of limitations had been tolled for the period during which the plaintiff pursued his workers' compensation remedy.

In the wake of Elkins, the California Supreme Court has stated that in order to prove the applicability of the equitable tolling doctrine, a party must establish "three elements: 'timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff. The timely notice requirement essentially means that the first claim must have been filed within the statutory period and must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim.

Contrary to the trial court's memorandum of decision, there is neither legal nor logical support for the court's ruling that in order for equitable tolling to apply, Hopkins was required to have been unsuccessful in seeking workers' compensation benefits before the Elkins doctrine will apply. "While it is true that the plaintiff in Elkins was unsuccessful in his attempt to obtain workers' compensation benefits (id. at p. 413), there is nothing in the opinion that suggests that this fact was necessary to the court's conclusion." The matter is remanded with directions for the trial court to determine whether Hopkins has demonstrated the three required elements of equitable tolling. Read More...

BART Fined $210,000 For Workplace Fatality
Fri, 18 Apr 2014 11:15:44 - Pacific Time
Handing down the most severe rebuke they can, state regulators slammed BART for serious and willful safety violations related to the deaths of two workers hit by a train in October in Walnut Creek and fined the transit agency $210,000. The state's top safety agency, Cal-OSHA, determined that the victims, Christopher Sheppard, 58, of Hayward, and Laurence Daniels, 66, of Fair Oaks, were not qualified to perform work near energized third rails. One was carrying an aluminum level, highly conductive to third-rail electricity and a safety violation. Investigators also found that the high-ranking transportation manager training another employee to drive the train that struck the two men was seated in a passenger car where he could not view the track ahead, as required. The third violation involved the controversial "simple approval" protocol, which put the onus for trackside workers' safety on those individuals. State regulators said that protocol was "inadequate" to prevent accidents like this and "not followed."

The story in Mercury News says that Sheppard and Daniels were inspecting a dip in the tracks between the Walnut Creek and Pleasant Hill/Contra Costa Centre stations on Oct. 19, during a BART strike when trains were running only for maintenance and training purposes. An autopsy report confirmed both men were facing away from the train when it hit them at about 70 mph, violating regulations requiring one of them to stand away from the track and watch for oncoming trains. While Sheppard and Daniels were experienced track engineers, Cal-OSHA said BART "failed to ensure that only qualified electrical workers were allowed to perform work" near energized third rails.

Union representatives blasted the transit agency for training operators in an unsafe manner and placing workers at risk. Cal-OSHA had pushed for abandonment of BART's "simple approval" protocol since previous worker fatalities in 2001 and 2008, and BART is still appealing a fine levied after the 2008 death of a BART worker hit by a train in Concord. The transit agency is scheduled to appear in Alameda County Superior Court on June 23 to continue that appeal. "BART made inadequate amendments to 'simple approval' following the 2001 and 2008 incidents," Cal-OSHA spokesman Greg Siggins said Thursday, who insisted that protocol went against state law.

"BART has fundamentally upgraded its safety procedures with the implementation of an enhanced wayside safety program and a proposed budget investment of over $5 million in additional resources to bolster BART's safety performance," BART General Manager Grace Crunican said in a statement Thursday. That money will be spent on additional positions in BART's maintenance and engineering, transportation and safety departments, track maintenance, train control systems, enhanced monitoring and a safety incentive program for front-line workers, the general manager said.

In March, BART announced that its on-time performance slipped by two percentage points, from 94.4 percent to 92.1 percent, since state regulators modified safety rules. And things may get even slower, as next month BART will add new policy changes to include better communication between the control center, train operators and work crews on the track; more safety measures and reduced train speeds near wayside workers; and a mandatory watch person during nonoperating hours when maintenance vehicles are on the tracks, Crunican said.

BART is still awaiting a final report and recommendations from the National Transportation Safety Board, which could lead to further changes.

This fine is the largest levied by Cal-OSHA since January 2013, when regulators docked Chevron almost $1 million for the Aug. 6, 2012, fire at its Richmond refinery. BART has 15 working days to appeal but has not indicated how it will proceed, although it did say Thursday that many new safety measures are now in place. Read More...

Cal/OSHA Fines Real Estate Firm for Tree Trimming Fatality
Wed, 16 Apr 2014 11:37:00 - Pacific Time
State regulators have cited a La Mesa real estate firm with $91,865 in penalties following a workplace tree-trimming accident that killed an employee on Nov. 12, 2013. Joshua Alan Pudsey, 42, was in the bucket of a boom lift when he was struck by a 25-foot branch that fell from a 60-foot-tall eucalyptus tree at a home at 4450 Date Ave. in La Mesa. The property was owned by Three Frogs, Inc., which buys, renovates and resells residential property, according to an investigation by California's Division of Occupational Safety and Health, also known as Cal/OSHA. Pudsey was a general construction laborer who had been working for the company for three months before the accident, and he did not have the training or experience needed to safely trim a tree of that size, Cal/OSHA found.

State law requires employers to hire qualified tree workers to direct all work on trees taller than 15 feet. Pudsey and other workers on the job were not trained to use the 80-foot aerial lift they used to cut the tree, nor were they provided with eye protection or harnesses to protect them from falls while working on the lift, the Cal/OSHA investigation found.

Three Frogs owner Scot Wolfe said his firm was cooperating with state regulators. "OSHA's just doing their job," Wolfe said. "We don't fault them for doing their job at all." Wolfe declined to answer other questions about his company but did offer condolences to Pudsey's family. "A man died on the job," Wolfe said. "Our hearts go out to his family, obviously."

Altogether, Cal/OSHA has issued 13 citations against Three Frogs, including eight serious citations. (A violation is considered serious when it could directly result in death or serious physical harm.) Five of the serious citations were related to the accident and the company's violation of the tree removal standard, such as the company failure to maintain an Injury and Illness Prevention Plan or a written Heat Illness Prevention Program, according to Cal/OSHA. "When safety takes a backseat to the bottom line, tragedies such as this one will result," said acting Cal/OSHA Chief Juliann Sum in a press release. "Companies that cut corners by not abiding by workplace safety regulations put their employees at direct risk of numerous hazards."

The state Division of Labor Standards Enforcement ordered the company to stop work on Nov. 13 after the state Labor Commissioner found the company failed to provide worker's compensation coverage for its employees. The stop order will remain in place until Three Frogs demonstrates that a workers' comp policy is in effect, regulators said. The investigation into labor practices is ongoing, and regulators also have an ongoing criminal investigation.
Read More...

Security Firm Head - Heads to Jail for 120 Days
Wed, 16 Apr 2014 11:36:53 - Pacific Time
The head of a private security firm once charged with monitoring Oldtown Salinas was sentenced to five years’ probation and 120 days in jail, according to the Monterey County District Attorney’s Office. Anthony Vincent Perez, a.k.a. Tony Vincent, was arrested in April 2013 on nine charges related to business, insurance and tax fraud and evasion. In February, he pleaded no contest to two felonies and a misdemeanor in the case.

Local prosecutors said they were tipped off in December 2012 that Perez was paying his employees in cash and operating without workers’ compensation insurance. The investigation revealed Perez hadn’t registered with nor reported employee wages to the Employment Development Division since 2006, when he went into business, prosecutors said. Perez further misclassified his guards as independent contractors rather than employees as required by the Bureau of Security and Investigative Services and provisions regulating Private Patrol Operators, prosecutors said.

During the investigation, Perez obtained workers’ compensation insurance through the State Compensation Insurance Fund by making material misrepresentations to obtain a lower premium, prosecutors said.

DA Investigator Martin Sanchez, California Department of Insurance Detective Stuart Rind and Bureau of Security and Investigative Services Investigator Laura Jestes teamed up to investigate the case.

Perez was placed on five years’ felony probation. He was also ordered to serve 120 days in the Monterey County Jail, to complete 200 hours of community service and pay $18,000 fines.

Restitution will be determined May 15. Read More...

DWC Posts Proposed Opioid Guideline - Three Steps Forward, Two Steps Back
Tue, 15 Apr 2014 12:40:27 - Pacific Time
The Division of Workers’ Compensation (DWC) has posted a proposed "Guideline for the Use of Opioids to Treat Work-Related Injuries" to its online forum. Members of the public may review and comment on the proposal until April 21, 2014.

"Opioid misuse is a national concern. California is on the forefront of providing appropriate care and improving outcomes by issuing these guidelines," said Department of Industrial Relations Director Christine Baker.

Currently, the Medical Treatment Utilization Schedule (MTUS) addresses the use of opioids in the Chronic Pain Medical Treatment Guidelines. DWC intends to remove the existing parts of the MTUS that refer to opioid use and instead revise the MTUS to include this proposed guideline. "We created separate guidance for the use of opioids in the California workers’ compensation system to highlight the importance of appropriately treating workers in pain while also ensuring safety when using these medications," said DWC Executive Medical Director Dr. Rupali Das. "A key goal of this guideline is to ensure restoration of function and early return to work following an injury."

The proposed "Guideline for the Use of Opioids to Treat Work-Related Injuries" was developed in cooperation with the multidisciplinary Medical Evidence Evaluation Advisory Committee (MEEAC). The recommendations are derived from the best available evidence-based guidelines and scientific studies. The proposed guideline provides a set of best practices for considering opioids in the management of acute, subacute, post-operative, and chronic pain related to work-related injuries. Recommendations include when it is appropriate to consider adding opioids to the treatment regimen; medications to avoid when using opioids; methods and tools to monitor patients on opioids; the need to educate patients about the adverse effects of opioid use; and responsible storage and disposal of opioids. In addition, useful tools and resources for patient management are provided. The guideline is divided into four parts: Part A, a summary, abbreviated treatment protocols, and introduction; Part B, complete recommendations, and appendices containing useful tools; Part C, findings to support the recommendations; and Part D, a compilation of recommendations from a review of existing guidelines.

The Guideline is comprehensive. Part B is 104 pages. A number of provisions are a "step forward" from our current MTUS provisions. For example, one of the new concepts of the guideline states "If opioids are prescribed, the Controlled Substance Utilization Review and Evaluation System (CURES), California’s Prescription Drug Monitoring Program should be accessed. If CURES indicates the simultaneous use of other narcotic medication, opioid use may be contraindicated."

Use of the CURES database to determine if a patient is abusing opioid medication or not providing an accurate history is well intentioned. Use of drug databases are becoming the national standard, and a well accepted tool to curb some abuse. However, the proposed Guideline uses the term "should" throughout the document which waters down the proposed regulation. In this regard the Guideline takes two steps backward. The term "should" means a person is "encouraged" to do something while "must" and "shall" mean they are required to do it. The main use of should in modern English is as a synonym of ought to, expressing quasi-obligation, appropriateness, or expectation. When used in statutes, contracts, or the like, the word "shall" is generally imperative or mandatory. Hence, a medical practitioner is not required to follow many of the provisions of the new Guideline, and can simply avoid any regulatory language preceded by the term "should."

The MTUS regulations can be found in Title 8 of the California Code of Regulations, beginning with section 9792.20. The proposed guidelines will be in a new section, 9792.24.4. The forum can be found online on the DWC forums web page. Read More...

Owner of Van Nuys Medical Supply Company Gets Six Years in Prison
Tue, 15 Apr 2014 12:40:20 - Pacific Time
A North Hollywood woman who pleaded guilty in January to health care fraud was sentenced Monday to six years in federal prison and ordered to pay nearly $10 million restitution to Uncle Sam.

Susanna Artsruni, 46, whose Midvalley Medical Supply of Van Nuys had submitted nearly $25 million in bogus bills to Medicare, was sentenced by U.S. District Judge Margaret M. Morrow, according to the U.S. Attorney’s Office. Artsruni, who also used the names "Mary" and "Rose,"worked at a number of medical clinics in Los Angeles.

She was sentenced after pleading guilty earlier this year to one count of health care fraud and one count of money laundering. She was ordered to serve 76 months in prison and to pay $9,624,556 in restitution to Medicare.

In her plea agreement, Artsruni admitted to billing Medicare for services and supplies that were medically unnecessary and sometimes never provided. The scheme involved physician’s assistants at three Los Angeles medical clinics who signed prescriptions and orders for unnecessary tests, services and equipment. She also admitted to writing checks of more than $35,000 from the Midvalley bank account to three corporations that had no connection to the medical industry and apparently had not provided any legitimate business services to her company. The checks, she admitted, were meant to launder funds related to the welfare fraud. At the time, Artsruni was free on bond in another health care fraud case whose terms ordered her not to work at any medical facility.

A second defendant in the case, Erasmus Kotey, a physician’s assistant, has pleaded guilty and is scheduled to be sentenced Sept. 8, according to the U.S. Attorney’s Office. Charges have been filed to three others allegedly associated with the money laundering, who have pleaded not guilty for a trial expected early next year Read More...

Claimant Arrested for Working as Massage Therapist While on Comp
Mon, 14 Apr 2014 12:49:34 - Pacific Time
Wayne Lu, 53 of Torrance is in custody on charges of alleged workers' compensation fraud associated with an injury received during his employment with the U.S. Postal Service. Detectives from the California Department of Insurance, with the assistance of U.S. Postal Inspectors, arrested Lu on Tuesday, April 8 in Manhattan Beach.

"Workers' compensation fraud is not a victimless crime," said Insurance Commissioner Dave Jones. "Fraudulent claims inflate premiums for all consumers and cast unnecessary doubt on workers that are truly injured and deserve timely treatment and rehabilitation."

California Department of Insurance Detectives and United States Postal Service Office of Inspector General Special Agents conducted a joint investigation and learned that Lu was working as a massage therapist despite his claims of shoulder injury. Surveillance and undercover operations by Fraud Division Detectives proved that Lu was a working massage therapist and failed to report said employment or improvement of condition to the United States Department of Labor, the entity that handles workers' compensation for the U.S. Postal Service.

Detectives from CDI's Fraud Division are currently part of a task force operated by the Office of Inspector General - Postal Inspection Unit, focused on investigating and arresting postal employees who are suspected of committing insurance fraud in the State of California. Wayne Lu is charged with one felony count of insurance fraud and the case will be prosecuted by the Los Angeles County District Attorney's Office. Read More...

Trucking Company Owner Sentenced to 300 Days
Mon, 14 Apr 2014 12:49:27 - Pacific Time
A Salinas trucking company owner was ordered to spend 300 days in jail and pay more than $60,000 in fines for falsifying the number of his employees and the scope of their work

Monterey County Superior Court Judge Russell Scott sentenced Ricardo Casillas, 33, on charges of insurance fraud, workers' compensation fraud and payroll tax evasion, the District Attorney's Office said.

Casillas owns Desert Express Transportation Lines and Casillas Transportation Services.

Casillas was also placed on probation for 10 years and ordered to pay about $350,000 in restitution to the state Employment Development Department for failing to file payroll taxes, prosecutors said. An insurance carrier is seeking another $108,000 in unpaid insurance premiums. Read More...

DWC Changes Panel QME Process to Comply With Nararro Decision
Fri, 11 Apr 2014 13:02:36 - Pacific Time
On April 2, 2014, the Workers' Compensation Appeals Board issued an en banc decision in Navarro v. City of Montebello which invalidated part of QME Regulation 35.5(e) .

In 2009, Ismael Navarro filed an application and claim form alleging a cumulative injury from February 9, 2008 to February 9, 2009 to his back and ear and was evaluated by panel QME J. Yogaratnam, M.D., Then in 2010, applicant filed applications for adjudication with claim forms alleging a specific injury of June 1, 2010 to his back, lower extremities and legs and a specific injury of August 31, 2010 to his back and left leg.

In 2012, defendant petitioned to compel an evaluation of applicant’s two subsequent claims of injury by original panel QME Dr. Yogaratnam, but it did not seek to have applicant reevaluated regarding his previous claim of cumulative injury. Applicant objected. The WCJ found that applicant was entitled to a new panel QME in his specific injury cases and that QME Rule 35.5(e) that seems to require an applicant to return to the original QME did not apply. The WCAB agreed (using a slightly different rationale) and ruled that for subsequently filed claims, an applicant need no return to an original PQME.

Pursuant to the WCAB’s ruling that the applicable Labor Code provisions do not require an employee to return to t he same panel QME for an evaluation of a subsequent claim of injury, the DWC Medical Unit will now issue new QME panels for claims made after an evaluation has taken place. Initial QME panel requests must be submitted using QME Form 106 for represented cases or QME Form 105 for unrepresented cases.

To avoid unnecessary rejection of appropriate requests, in cases i n which additional panels are required in different specialties, parties and attorneys are reminded to use QME Form 31.7 Read More...

DWC Posts More Proposed Changes to HOPD/ASC Fee Schedules
Fri, 11 Apr 2014 13:02:29 - Pacific Time
The Division of Workers’ Compensation (DWC) has posted a first 15-day notice of modification to the proposed hospital outpatient departments and ambulatory surgical centers (HOPD/ASC) fee schedule regulations to the DWC website.

Members of the public are invited to present written comments regarding the proposed modifications noticed in the first 15-day comment period until 5 p.m. on April 28, 2014. The proposed modifications include:

1. Updating the definitions of emergency room visit and surgical procedures to conform to Medicare and HCPCS coding changes.
2. Providing a base facility fee "formula" to give additional clarification regarding the payment methodology for "Other Services" that are determined solely on the non-facility practice expense relative value units.
3. Clarifying that the alternative payment methodology will be inapplicable for dates of service on or after the effective date of the proposed regulations.

The notice and text of the regulations can be found on the proposed regulations page. Read More...

Past Week News Archive


Crawford Placed on Top 100 Business Technology Innovators List: Thu, 10 Apr 2014 13:04:58 - Pacific Time: Read More...


Bell Gardens Police Officer Convicted in Comp Fraud Case.: Thu, 10 Apr 2014 13:04:51 - Pacific Time: Read More...


SF Bus Driver Charged With Felonies For Faking Robbery: Wed, 9 Apr 2014 14:35:51 - Pacific Time: Read More...


Truck Driver Faces Decade In Prison After Jury Trial: Wed, 9 Apr 2014 14:35:44 - Pacific Time: Read More...


Psychiatric AME Must Separately List and Assess Each Claimed Stressfull Event: Tue, 8 Apr 2014 13:07:55 - Pacific Time: Read More...


California Economy Report Card - Is Comp Our Only Problem?: Tue, 8 Apr 2014 13:07:24 - Pacific Time: Read More...


FDA Approves Painkiller Overdose Emergency Device: Mon, 7 Apr 2014 14:16:56 - Pacific Time: Read More...


DWC Posts Adjustments to OMFS: Mon, 7 Apr 2014 14:16:49 - Pacific Time: Read More...


Former Cal/OSHA Official Files Whistleblower Complaint Against Agency: Thu, 3 Apr 2014 11:30:19 - Pacific Time: Read More...


Study Says Voluntary Disability Insurance Reduces Comp Claims: Thu, 3 Apr 2014 11:30:13 - Pacific Time: Read More...