Author Archives: Edgar Romano

Cost Shifting: Worker’s Compensation Dirty Little Secret

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

Today I taught worker’s compensation “Offsets” in the course I teach at Marquette Law School. The students were aghast at the amount of “cost shifting” that occurs in worker’s compensation: that is, medical costs paid by a variety of sources other than worker’s compensation for medical expenses that should be paid by the worker’s compensation insurer.

We all pay an additional price for medical costs borne by group health insurance carriers, Medicaid, and Medicare that should in fact be paid by worker’s compensation insurers. This “cost shifting” occurs in two significant ways. First, if the claim is denied by the worker’s compensation insurance carrier, medical costs may be paid by the worker’s group health insurance or other private insurance company, or through State Medicaid or federal Medicare programs (the cost of which we all pay in taxes). When those claims are settled, the worker’s compensation insurer routinely saves money by reduced negotiated payment contracts with medical providers, between the provider and the group health carrier, Medicare, or Medicaid (rather than the “full boat” payments that should be paid by the worker’s compensation insurer). If the treatment is deemed work-related after a hearing, the worker’s compensation insurer will pay the other insurer, but at reduced rates.

Second, since only about one in ten cases involves any kind of litigation, workers who are not represented routinely bill their group or other insurance carrier for medical treatment that should be paid by worker’s compensation. Bolstering this notion is a recent article in the Insurance Journal. In the article Jonathan Gruber, Professor of Economics at M.I.T. was quoted indicating that worker’s compensation carriers should see fewer claims as a result of more Americans obtaining health insurance under the Affordable Care Act. He said “As more people have health insurance there is less need for them to have injuries covered by worker’s compensation and this should lower worker’s compensation costs.” Nowhere in this analysis is the notion that the appropriate payor for a worker’s compensation injury should be a worker’s compensation insurer, not health insurance premiums (which are shared by us all) nor Medicare and Medicaid (again shared by us all in the form of taxes).

Workers hurt on the job should have their medical treatment paid by the worker’s compensation insurer, who has received a premium for that risk from the worker’s employer. Cost shifting may increase worker’s compensation profits, but it hurts both the employers’ and the employees’ bottom line.

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2014 Top Ten Workers’ Compensation Fraud Cases

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

  Number Value
Non-Employee Fraud Cases 9 $ 74,876,000.00
Employee Fraud Cases 1 $ 450,000.00
Total $ 75,326,000.00

Five of the top ten fraud cases in 2014 are from California. The other five cases are from Florida, Texas, Arizona, Washington and Georgia. As usual, non-employee fraud cases dominated the list and the dollar amounts are staggering, led by the $36 million over-billing case out of southern California. An emerging issue is the misclassification of workers, and we will likely see more of these cases in 2015 as enforcement steps up in this area.

1. (California) Medical Equipment Company Overbills $36 Million (3/17/14)

The owners of Aspen Medical Resources were indicted in on 49 felony counts of fraud.
The owners of Aspen Medical Resources were indicted in on 49 felony counts of fraud.

The owners of Aspen Medical Resources had all their assets seized and put into receivership by the Orange County District Attorney. They were indicted in on 49 felony counts of fraudulent overbilling of $36 million for hot-cold physical therapy machines. Although these machines retail between $250 and $500 Aspen often billed Southern California workers’ compensation claims departments thousands of dollars each time a machine was rented.  

2. (California) 15 Medical Professionals Indicted in $25 Million Scheme – Small Child Dies (6/24/14)

Ahmed Kareem, one of 15 doctors accused of participating in a workers’ compensation scam.
Dr. Ahmed Kareem   is accused of participating in a workers’ comp scam.

Fifteen doctors, pharmacists and other medical professionals in Southern California were charged in a $25 million workers’ compensation scam which was linked to the death of a baby. Prosecutors alleged insurance fraud and conspiracy in the 44 count indictment which detailed that the head of a workers’ compensation claims management firm hired pharmacists to produce a pain-relief cream and then gave kickbacks to the doctors that prescribed it and conspired to submit phony claims. A 5-month old boy ate the cream and died when his mother, who was using the prescribed cream for back and knee pain, allowed her son to suck her fingers to sooth him. The next morning he was found dead and tests showed he had ingested lethal amounts of drugs in this cream.

3. (California) Lowe’s Settled Independent Contractor Misclassification Case for $6.5 Million (7/3/14)

Lowe’s misclassified its installers as independent contractors, rather than employees.
Lowe’s misclassified its installers as independent contractors, rather than employees.

Over 4,000 “Lowe’s professionals” in California are members of a class action alleging that Lowe’s misclassified its installers as independent contractors, rather than employees, thus depriving them of a variety of employee benefits, from workers’ compensation insurance coverage to 401(k) plan participation. Lowe’s, without admitting liability, recently settled the case after mediation for a sum that could be as much as $6.5 million. The plaintiffs claimed that Lowe’s retained and exercised control over their work by requiring them to identify themselves as working for Lowe’s, wear Lowe’s hats and shirts, and attend training by Lowe’s.

4. (California) Paving Company Cheats System of $4 Million (6/19/14)

Sabas & Lucia Trujillo
Sabas & Lucia Trujillo face criminal charges for workers’ comp’ fraud.

Five owners (Sabas Trujilo, Lucia Trujilo, Rick Trujilo, Laura Fitzpatrick and Alex Trujilo), operators and employees of a Corona, California based paving company are facing criminal charges for alleged wage theft, premium fraud, workers’ compensation and payroll fraud. The Riverside County District Attorney’s Office alleges that the individuals’ criminal actions enabled them to illegally obtain about $4 million. After launching an investigation, the state obtained search warrants for both companies, seizing computers and bank, payroll and other documents. The state conducted several wage audits on several hundred projects, which ultimately led to the filing of criminal charges.

5. (Florida) False Insurance Certificates Check Cashing Scheme Defrauds Insurance Company of $1 Million (11/18/14)

Arturo Santos Zuniga paid laborers cash to avoid paying workers' comp'.
Arturo Santos Zuniga paid laborers cash to avoid paying workers’ comp.

Arturo Santos Zuniga, who also went by the name David Hernandez, was busted for paying laborers in cash to avoid paying workers’ compensation insurance premiums. Zuniga paid a North Lauderdale man to create and insure a fake or “shell” company, Behar Services Incorporated, and “rented” out insurance certificates to uninsured subcontractors in South Florida. Payments to the uninsured subcontractors were made through checks to the fake company, which were then cashed at check cashing stores. Behar Services Incorporated got its insurance policy by saying it had 10 employees doing carpentry and office work with an annual payroll of $210,000. The annual premium was about $26,500. Law enforcement financial reports show that just in the months from July to October, more than $7.3 million had been cashed out at check cashing stores to Behar Services Incorporated and/or the North Lauderdale man who started the company. A $7.3 million payroll would have cost more than $1 million more than the existing policy. No estimate of lost tax revenue was given.

6. (Texas) Man to Pay $806,000 for Underreporting Payroll to Workers’ Comp Carrier (3/11/14)

Howard Douglas Whiddon of Travis County was ordered to pay $806,000 in restitution.
Howard Douglas Whiddon was ordered to pay $806,000.

Howard Douglas Whiddon was ordered to pay $806,000 in restitution to workers’ compensation insurer Texas Mutual Insurance Co. after pleading guilty to workers’ comp fraud-related charges. He intentionally misrepresented the payroll of a related company, thus lowering his premiums. Mr. Whiddon was sentenced by a Travis County, Texas court to 10 years of deferred adjudication and 160 hours of community service.

7. (Arizona) Paul Johnson Drywall Inc. Agreed to Pay $600,000 in Back Wages, Damages and Penalties to 445 Employees (5/19/14)

Paul Johnson Drywall Inc. classified its workers as “members/owners” instead of employees.
Paul Johnson Drywall Inc. classified its workers as “members/owners” instead of employees.

Paul Johnson Drywall Inc. classified its workers as “members/owners” instead of employees, which stripped them of workers’ compensation and other protections afforded to employees. The owner, Robert Cole Johnson agreed to take concrete steps to ensure that misclassification of its workforce does not occur again and to pay $556,000.00 in overtime back wages and liquidated damages to at least 445 current and former employees. The employer also agreed to pay $44,000.00 in civil monetary penalties. Investigators found that the drywall contractor violated the Fair Labor Standards Act overtime and record-keeping provisions.

8. (Washington) Summit Drywall, Inc. Ordered to Pay $550,000 in Unpaid Wages and Damages to 384 Workers (2/20/14)

The owner of Summit Drywall, Inc. was ordered to pay damages to 384 employees.
Summit Drywall’s owner was ordered to pay damages to employees.

Thomas Kauzlarich, the owner of Summit Drywall, Inc. was ordered to pay $550,000 in overtime back wages and liquidated damages to 384 current and former employees. An investigation showed that the company violated the Fair Labor Standards Act’s overtime and record-keeping provisions from October 15, 2009 to April 15, 2013. The article did not report the amount of reduced workers’ compensation premiums paid.

9. (Georgia) Nurse Gets 5 Years in Prison for $450,000 Bogus Workers’ Comp Claims (8/26/14)

A VA nurse from Glenwood, GA, will serve five years in prison for mail fraud and fraudulent claims.
A VA nurse from Glenwood, GA, will serve five years in prison for mail fraud and mailing fraudulent claims.[/caption] Loretta Smith, a VA nurse from Glenwood, GA, will serve five years in prison and must repay $450,000.00 in federal funds by filing bogus workers’ compensation claims, pleading guilty to two counts of mail fraud in the mailing of fraudulent claims, in which she received more than $450,000.00. She agreed to forfeit the equivalent of $454,740.06 in cash, real estate and other property. She was also sentenced to three years probation after her release.
10. (California) Drywall Company Owners Arraigned on $420,000 in Fraud Charges (12/11/14) The owners of a defunct drywall company, National Drywall in San Bernardino, CA, were arraigned on charges that they defrauded their workers’ compensation insurance carrier of $260,000.00 and stole $160,000.00 from their workers.
 
Honorable Mention 

(Oregon) Uncooperative Hillsboro Businessman Convicted of $481,519 Tax Evasion – Only Gets 30 Days In Jail (9/30/14)

Stephen Nagy engaged in fraudulent schemes to evade payment of payroll taxes.
Stephen Nagy engaged in fraudulent schemes to evade payment of payroll taxes.

Stephen Nagy was the former president of Hillsboro-based S&S Drywall Assemblies. The IRS assessed the company $481,519 in federal employment taxes, penalties and interest between June 2009 and September 2010. Nagy met with the IRS and chose not to comply with the payment plan and engaged in a variety of interrelated fraudulent schemes to evade the payment of the delinquent payroll taxes. Nagy intimidated, manipulated, and threatened the loss of much needed jobs to gain the cooperation of his employees. Special agents of the IRS learned that Nagy had transferred all of S&S Drywall Assemblies income, contracts, receivables and assets to ASM Drywall, Inc. a shell company he created and placed in his sister’s name. The Oregon attorney general prosecuted Nagy in 2011 on allegations of criminal anti-trust and racketeering. He was sentenced to 30 days in jail and five years of supervised probation.

 
For more information, contact:
Leonard T. Jernigan, Jr.
Adjunct Professor of Workers’ Compensation
N.C. Central University School of Law
The Jernigan Law Firm
2626 Glenwood Avenue, Suite 330
Raleigh, North Carolina 27608
(919) 833-0299
neb@jernlaw.com
Website: www.jernlaw.com
Facebook: https://www.facebook.com/jerniganlawfirm
Twitter: @jernlaw
Blog: www.ncworkcompjournal.com

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What Does Supreme Court’s Warehouse Workers’ Ruling Mean?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Last Monday, the U.S. Supreme Court ruled 9-0 that contracted warehouse workers for Amazon did not have to be paid for time spent waiting to clear through an anti-theft security screening after their shifts. Justice Clarence Thomas ruled that time spent in an after-work security screening was not integral and indispensable to the primary activity of a warehouse worker, therefore not covered under the federal Fair Labor Standards Act. So what does that mean for you?

First of all, this should mean that any worker who has to go through a security check after work will not have to be paid by their employer for the time that process takes. However other pre- and post- workday activities should still be covered under the Fair Labor Standards Act. Donning and doffing safety equipment is still compensable because such safety equipment helps an employee work safely. Call-center workers still should be paid for time spent booting up and logging into a computer and phone because a call-center employee is unable to do their job if they are not logged into their phones and computers. Employees should also consult with a lawyer about state wage and hour law as state law may be friendlier to employees.

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Employer Fraud and Recommendations from New York State Supreme Court’s Grand Jury Report

Today’s post was shared by Jon L Gelman and comes from legaltalknetwork.com

A recent Grand Jury Report from the New York State Supreme Court brought recommendations of change to handle Employer Fraud in Workers’ Compensation. Among the recommended areas of change are the application process, criminal statutes, and the method of collecting data. On this episode of Workers Comp Matters, host interviews Gilda Mariani of the Manhattan District Attorney’s Office. Together they discuss the results of the Grand Jury Report and the subsequent victims of premium fraud. Tune in to learn more about employee classifications, the involuntary insurance market, and drivers of cost for workers’ compensation insurance.

Gilda Mariani is with the New York County District Attorney’s Office, having held supervisory positions including Deputy Chief of its former Frauds Bureau as well as Chief of its former Money Laundering and Tax Crimes Unit. She has had a significant role in drafting legislation, including the New York Money Laundering Statute and the misdemeanor crime of Providing a Juror with a Gratuity. She has conducted several investigations that have led to issuance of Reports by the New York County Grand Jury, including the Grand Jury Report released in March 2014  on workers’ compensation reform. Mariani is also a recipient of the Robert M. Morgenthau Award by the District Attorneys Association of the State of New York.

Special thanks to our sponsor, PInow.

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Protecting Workers from being Destroyed by the Work Schedule

Senator Tom Harkin

Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.

I wrote the post below as an editorial in the Iowa City Press-Citizen. Because The Scheudles That Work Act is of national importance I want to make sure this issue receives the attention that it deserves by promoting awareness of it as broadly as possible. I hope you’ll take the time to read my editorial and pass it along to concerned citizens in your area.

Workers deserve some certainty in their work schedules. Why? Because we all have need to plan for child care, time for school, transportation, or simply time to pay bills and manage the household. It’s basic fairness.

But don’t you, a friend or an acquaintance work a job with unpredictable and irregular work schedules? You’ve probably noticed that irregular and on-call scheduling are increasingly common. It’s especially common in the fastest-growing areas of our economy—- cleaning, janitorial, retail and restaurant work.

These scheduling practices can devastate the worker and her/his family. The practices demand the worker choose between his job or his family. They often lead to the worker being fired.

Vermont and San Francisco have already passed laws to help employers and workers avoid this devastation.

Senator Tom Harkin has now proposed The Schedules That Work Act to help workers balancework duties with family duties. The Act helps both workers and employers by:

  • Protecting all employees from retaliation for requesting a more flexible, predictable or stable schedule.
  • Creating a process under which an employer considers a worker’s schedule request in a way that’s sensitive to the needs of the worker and her/his family. For example, schedule requests based on caregiving duties, health conditions, pursuing education or the need to meet the demands of a second job, must be granted, unless the employer has a good business reason for denying it.
  • Compensating retail, food service, and cleaning workers for at least four hours of work if an employee reports to work when scheduled for at least four hours but is sent home early.
  • Providing that retail, food service, and cleaning employees receive work schedules at least two weeks in advance. Though schedules may later be changed, one hour’s worth of extra pay is required for schedules changed with less than twenty-four (24) hours’ notice.
  • Providing workers an extra hour of pay if scheduled to work split shifts or non-consecutive shifts, within a single day.

Kudos to Senator Harkin! Some politicians and billionaire-driven PACs parrot “Iowa values” as a campaign slogan. Senator Harkin, on the contrary, uses those values to create legislation like the ADA and The Schedules That Work Act.

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National Prevention Council Annual Status Reports

Today’s post was shared by US Labor Department and comes from www.surgeongeneral.gov

Every year, the Council submits a report describing national progress in meeting specific prevention, health promotion, and public health goals defined in the National Prevention Strategy to the President and the relevant committees of Congress.

National Prevention Council’s 2014 Annual Status Report

The National Prevention Council’s 2014 Annual Status Report illustrates how Council departments are working across the federal government to incorporate health in diverse sectors like housing, transportation, and education to advance the Strategy and influence the health of individuals, families, and communities. In addition, the report highlights how partners across the country are advancing the National Prevention Strategy in organizations ranging from health care systems to workforce agencies and national foundations to local non-profits.  

Read the National Prevention Council 2014 Annual Status Report (PDF – 4.8 MB) 

The above file is currently undergoing remediation for compliance with Section 508. The remediation will be complete by July 31, 2014. In the interim, should you need accessibility assistance with the file, please contact the Office of the Surgeon General at Surgeon.General@hhs.gov.

Previous Annual Status Reports

Read the National Prevention Council 2012 Annual Status Report  (PDF – 490 KB)

Read the National Prevention Council 2011 Annual…

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Lawsuit claims DEA paid man with crack

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from krqe.com

ALBUQUERQUE (AP) – Federal agents paid a struggling addict in crack cocaine for his help with an undercover investigation into a Las Vegas, New Mexico drug operation, a new lawsuit claims.

According to court papers filed Monday in U.S. District Court in Albuquerque, Aaron Romero, 38, was approached by DEA agents in 2011 to assist with drug deals in exchange for portions of the drugs obtained by authorities. But Romero’s participation in “Operation Smack City” reignited a previous crack addiction as he became a victim of recklessness on behalf of DEA agents, causing severe emotional and physical harm, the lawsuit said.

“The United States government and the defendants affirmatively and intentionally established a pattern of distribution of crack cocaine to (Romero) in order to utilize his addiction to crack cocaine to further the investigation and to ‘stack drug related charges’ against him,” the lawsuit said, which names five DEA agents.

Romero was later charged with distribution of drugs but federal prosecutors dropped the charges in January, according to his attorney, Erlinda Ocampo Johnson.

The lawsuit says the arrangement was in violation of DEA policy since the agency did not get prior approval from prosecutors.

Elizabeth Martinez, a spokeswoman for the U.S. Attorney’s Office in Albuquerque, said the office declined to comment on the case.

“He was targeted because he was a known drug addict,” Johnson said….

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OSHA Chief: Inequality in America Is About Workplace Hazards, Too

Today’s post was shared by Gelman on Workplace Injuries and comes from www.nbcnews.com

Image: Assistant Labor Secretary David Michaels of the Occupational Safety and Health Administration attends a full committee hearing on Capitol Hill on June 23 in Washington, DC.
Image: Assistant Labor Secretary David Michaels of the Occupational Safety and Health Administration attends a full committee hearing on Capitol Hill on June 23 in Washington, DC.

Inequality and poverty have taken center stage in American politics in the years since the recession. Fast food workers have raised the profile of low-wage work, cities and states around the country are raising the minimum wage, and elected officials in both parties have made the struggles of poor Americans core political issues.

But David Michaels, Ph.D., M.P.H., who leads the Occupational Safety and Health Administration under the Obama administration, says that workplace inequality is more than just wages. In an interview, Michaels, who is responsible for enforcing federal laws to project workers from illness and injury, says the regulatory structures he oversees aren’t sufficient to protect vulnerable workers from harm.

NBC: The political conversation about inequality in recent years has focused on wages. You’ve made the point that when addressing inequality, we should focus more on workplace health and safety issues. Why?

Michaels: Wages are clearly a core component of the discussion of inequality and the ability to get into and stay in middle class. But workplace health and safety issues also have an enormous impact. Workplace injury and illness can push workers out of middle-class jobs and make it hard to enter into the middle class in the first place.

Studies show that workplace injury…

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