“WHY” didn’t Agraquest inform David Bell he had legal rights for workers’ compensation benefits when he sustained a workplace injury/illness/disease from his exposures to human pathogens in the laboratory? “WHY” didn’t Agraquest give David the DWC 1 claim form, EMPLOYEE’S CLAIM FOR WORKERS’ COMPENSATION BENEFITS? “WHY”, did Agraquest list the wrong insurance carrier when David filed the DWC-1 claim form after he realized he had in fact gotten so sick and required emergency sinus surgery after only 5 months and 9 days on the job in 1999, continued to have sinus infections which resulted in an additional major sinus surgery in 2002 (two more followed) coupled with the fact David’s immune system was crashing and the histoplasma found in David’s blood serum related to the U.S. patent 6,004,774 which was filed with the United States Patent Office 3 months and 15 days after he began working for Agraquest? Was this Agraquest's further attempt to willfully and fraudulently conceal their involvement in David's medical condition? Did they list the "wrong" insurance carrier so the statue of limitation would run out?
“WHY” was and still is the above deliberate attempts by Agraquest to conceal David’s workplace injury/illness/diseases allowed to continue?
When Agraquest was 195 days past the 90-day allowable period to deny a claim per California Labor Code 5402 [90 Day Discovery - Period Starts] “WHY” was this allowed to continue throughout the California workers’ compensation process when David’s claim for workers compensation benefits should have been 100% compensatable? “Why” didn’t the California Worker’s Compensation system acknowledge, instead of ignore David’s judicial rights to a fair process?
At no time did Agraquest, upon David getting so sick in 1999 that required emergency sinus surgery 2 weeks and 2 days after he first sought immediate medical care, inform David that he had a right to apply for workers’ compensation benefits. Agraquest violated: Insurance Code Section 11760, Labor Code 5401 Reg 101119; Claim Form provided to employee within one day of knowledge of injury, Labor Code 3602; Liability exists for any injury sustained by an employee “arising out of and in the course of employment”, Labor Code 4600 Medical Treatment; employee is entitled to treatment that is “reasonably required to cure or relieve from the effects of the injury”, Labor Code 4650; Injury Causes Temporary Disability-Payment to Begin.
Although David Bell didn’t want to believe it could be true that Agraquest had betrayed him by not being honest as to just what dangerous bacteria and fungus he had actually been exposed to in his workplace environment, resulting in his 1st emergency sinus surgery and the 2nd that followed 3 years later, repeated infections and his continuing health decline, several events took place that opened David’s eyes.
David wife’s Physician who, upon agreeing to see David and spending 2 1/2 hours with him (in between his other patients) had said, “Something is wrong here, you need to get away from this group of Doctors” It was this Physician who referred David to the Mayo Clinic in Scottsdale, Arizona. David had an eye opening experience as a result of the Mayo Clinic referral and his “days” of medical tests:
•David researched the Mayo Clinic Medical Library and found Bacillus Subtilis was not as safe as Agraquest had led him to believe. There was the Flindt article from 1969 exposing the dangers from working with this bacterium as bacillus subtilis produced an enzyme, subtilisn. Several peer reviewed scientific articles concerning this fact have been published since.
•David was told by the Mayo Clinic that Histo-Yeast had been identified in his blood serum that had had been sent to the Mayo lab in Rochester Minnesota for analysis.
Prior to David going to the Mayo Clinic David had questioned Dr Appelblatt during several office visits whether he might have an immune problem. She kept saying “no” and implied that this was a ridiculous assumption on David’s part.
Because he had hurt all over... including his bones, Dr. Appelblatt had referred David to Dr. Robert Shapiro in late 2002, a rheumatologist in Sacramento. Among other lab tests ordered there was also a test for immune dysfunction. David had never heard of the findings of the fact that his immune system was indeed in jeopardy in the following months.
David, called the lab who performed the lab tests and “demanded” they fax him the results, his IgG levels were well below the acceptable level for an intact immune system . When he received the results from the lab, what he found was unbelievable. Not only was he not producing the required amount of B-cells, but the results of this lab test had in fact been sent to Dr. Nancy Appelblatt and Dr. Robert Shapiro previously. Neither physician had contacted David with these alarming findings.
(Dr Shapiro in fact has denied David ever being one of his patients when he was served with a subpoena for David’s medical records)
NOTE: It was later discovered that both Dr. Appelblatt and Dr. Shapiro were Sutter Independent Physicians.
•Pam Marrone, the founder of Agraquest sat on the board of trustees of Sutter. [View HERE]
•This can also be further be validated on the company that Pam Marrone started after she left Agraquest, Marrone Organic Innovations website: [ HERE ]
•"From 1999-2007, she has served on the Board of Sutter Health's Sacramento-Sierra Region, one of Sacramento's largest private employers and from 1994-2007 on the Sutter Davis Hospital Foundation Board."
After David presented the actual lab report to Dr. Appelblatt is when she referred David to an immunologist who started David on IV Immunoglobulin infusions at Sutter General in Sacramento These infusions lasted every 28 days for a period of between 7-8 hours each with the cost ranging from $7,000 to $15,000 for each infusion. David still does not have an intact immune system to this day.
David had “trusted” Agraquest and Dr Appelblatt and now he was realizing this trust had been unfounded.
David was advised that since Agraquest never informed him of his rights to file for benefits for a workplace sustained injury/illness/disease that he should file one himself.
Agraquest KNEW David got sick from working at the company and had to have surgery as a direct result. Since he was NOT advised he was entitled to benefits nor provided with the required DWC 1 claim form, the statue of limitations should have been tolled.
• “6. Describe injury and part of body affected.” “Occupational exposure to human pathogens and allergens leading to sinus surgery and immunodeficiency.“
•Agraquest listed the "wrong" insurance carrier. "WHY"? Was this another deliberate attempt to run out the statue of limitations?
•Not only did Agraquest list the "wrong" insurance carrier, they DID make "knowingly false or fraudulent material statement or material representation for the purpose of obtaining or denying workers’ compensation benefits or payments."
Well documented on the DWC 1 claim form which was signed by Don Glidwell states:
•Any person who makes or causes to be made any knowingly false or fraudulent material statement or material representation for the purpose of obtaining or denying workers’ compensation benefits or payments is guilty of a felony.
"WHY" then does Agraquest "get away" with committing this "felony"?
•The Workers’ Compensation position:
•Judge Dugan's November 21, 2007 Report and Recommendation on Petition for reconsideration:
“Likewise, applicant did not raise an issue of the correct insurance carrier. As applicant first raises those issues on the Petition for Reconsideration, they will not be further discussed.”
•At the onset of the workers compensation process it was not known that Agraquest had listed the wrong insurance carrier. This “fact” was not known until David’s claim for benefits had been denied and the case had already been brought and was underway at the Workers’ Compensation Appeals level.
•During each and every hearing this was brought to the attention of the court and ignored.
•The issue of Agraquest listing the "wrong" workers' compensation insurance carrier on David's DWC 1 claim form sent to them was attempted to be addressed by David’s attorney at the “trial” heard by Judge Dugan during her period where she “went off the record”.
David did not know until he had finally received his employee file in 2004 through a subpoena (first requested in 2000 in a letter to an Aqraquest attorney citing legal codes and “ignored”) that Agraquest had already received a denial letter on October 23, 2003 from Preferred Employers Insurance . Preferred Employers Insurance denial of claim with the reason being;
•"Date of Injury Predates Policy Period"
Agraquest made no attempt “IF” this had actually been a mistake by listing Preferred Employers Insurance by Agraquest to contact David Bell, who was at that time Pro Per nor contact their “correct” workers’ compensation insurance carrier to correct their questionable “error”. They chose to merely file this document in David’s employee file with no further action on their part.
David then obtained a worker’s compensation Attorney, Melissa Brown who filed a claim for compensation with Preferred Employers Insurance (unaware there had already been a denial of claim) and again, the claim was denied by Preferred Employers Insurance on February 5, 2004 citing:
•"No claim has been filed", "Sent to Preferred Employers in error" and "No coverage / Policy canceled".
•At this point Agraquest was now 37 days past the 90-day allowable for a denial of claim.
•On December 31, 2003 the workers compensation claim of David should have been 100% compensatable and he should have started receiving workers compensation benefits [90-day rule] however, this was IGNORED by Agraquest and the California Workers Compensation System.
David, who was now terribly sick and at the point of pure frustration realized the only way it was ever going to be know just who the “correct” workers’ compensation insurance carrier was for Agraquest at the time of his employment was he was going to have to find this information himself. He found this information could be obtained by notifying the San Francisco Workers Compensation Rating Bureau requesting this information. This he did on May 13, 2004.
On May 19, 2004 a letter of reply to David’s inquiry was sent to David from the Workers Compensation Rating Bureau in San Francisco notifying David the “correct” Insurance carrier for Agraquest at the time David was employed at the company was Golden Eagle, and NOT Preferred Employers Insurance as Agraquest had listed in their section of the 10/3/2003 DWC claim form sent to Agraquest, EMPLOYEES CLAIM FOR WORKERS' COMPENSATION BENEFITS.
•Agraquest had two policy periods with Golden Eagle:
• 1) 6/1/1998 to 6/1/1999
• 2) 6/1/1999 to 6/1/2000
•It took 4 days short of 7 MONTHS for David Bell to learn the identity of the "correct" workers compensation carrier of Agraquest at the time of his employment. At no time did Agraquest volunteer this information. In fact, Agraquest did in fact conceal this information from David Bell.
•Agraquest committed FRAUD against David Bell
David, being extremely upset that he was the one who had to find out the “correct” insurance carrier for Agraquest, and not his workers compensation attorney, Melissa Brown contacted Melissa Brown’s law office with his findings. Instead of Melissa Brown carrying the ball forward from there she “fired” David and again he was Pro Per in his workers compensation case.
David contacted Golden Eagle/Liberty Mutual who also denied his claim for benefits on July 14, 2004 .
•At this point Agraquest was now 195 days past the 90-day allotted time in which to deny a claim.
•Total time from the initial filing for Workers' Compensation Benefits by David and the denial from the "correct" Agraquest workers compensation insurance carrier was 285 days.
Why this case was even allowed to go further in the workers’ compensation system is a complete mystery. Agraquest was without a doubt well beyond the 90 days allowed in which to deny his claim for benefits as is mandated by law per California Labor Code 5402:
•California Labor Code Section 5402
•(a) Knowledge of an injury, obtained from any source, on the part of an employer, his or her managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400.
•(b) If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period.
•(c) Within one working day after an employee files a claim form under Section 5401, the employer shall authorize the provision of all treatment, consistent with Section 5307.27 or the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines, for the alleged injury and shall continue to provide the treatment until the date that liability for the claim is accepted or rejected. Until the date the claim is accepted or rejected, liability for medical treatment shall be limited to ten thousand dollars ($10,000).
•(d) Treatment provided under subdivision (c) shall not give rise to a presumption of liability on the part of the employer.
•The Workers’ Compensation position:
•Judge Dugan's November 21, 2007 Report and Recommendation on Petition for reconsideration:
“Applicant did not raise the issue of untimely denial of his claim or the presumption of commensurability as an issue”.
•This is COMPLETELY untrue and without merit. From the very beginning of the workers compensation process and at every hearing at the workers compensation appeals board this issue was brought up. It was ignored each and every time.
•Further evidence of this can be found in the the court record itself in the August 12, 2005: " APPLICANTS RESPONSE TO DEFENDANT'S PETITION TO COMPEL RESPONSE TO DEPOSITION QUESTIONS AND DEFENDANT'S PETITION TO COMPEL APPLICANT TO SIGN SOCIAL SECURITY MEDICAL RELEASE DATED AUGUST 3, 2005 ".
•NOTE: This "response" was not only mailed to David Bell, Agraquest, Daniel N. Reich, Lynne Rendon [Liberty Mutual], but was also mailed to "The Honorable Esther Volkan at the Workers' Compensation Appeals Board in Sacramento, Ca.
•Therefore, it "CANNOT be claimed" by The California Workers' Compensations system that they "had no knowledge" of the untimely denial of claim from Agraquest's worker's compensation insurance carrier, Liberty Mutual.
Contained in the attachments with this "response" were "two" letters dated January 21, 2005 addressed to Daniel Reich, Attorney for Agraquest and Liberty Mutual from Attorney Hollie Rutkowski:
• The first letter of January 21, 2005 from Rutkowski to Reich :
•"Your client's denial of this claim as post-termination was made in bad faith. This is not a post-termination claim", "this supports my position that Mr. Bell started treating for his illness in January 1999. Lynn Rendon stated in her denial that Mr. Bell did not report his injury prior to his termination in August 1999 [ERROR - date should be June 1999]. Since he is not required to report his claim if he has received treatment prior to being terminated, laid off or fired, your client's denial is in bad faith", "Please amend your denial. If you refuse to do this, your unreasonable refusal to act in good faith surely support[s] my claim that your client's denial of this claim as post-termination was made in bad faith. I will consider filing sanctions, as the only reason you will have to support your bad faith denial is your intention to delay my client's entitlement to benefits without any legal basis in violation of Board Rule 10109".
•Included with this letter were "three" pages of David's medical chart from Sacramento Ear, Nose and Throat. #1 , #2 , #3
• The second Rutkowski January 21, 2005 letter which was also attached to "APPLICANTS RESPONSE TO DEFENDANT'S PETITION TO COMPEL RESPONSE TO DEPOSITION QUESTIONS AND DEFENDANT'S PETITION TO COMPEL APPLICANT TO SIGN SOCIAL SECURITY MEDICAL RELEASE DATED AUGUST 3, 2005" is very clear in which Rutkowski stated:
•"Thank you for dropping your bogus post-termination defense and replacing it with the Statute of Limitations defense", “Not only do you have no Statue of Limitations defense, Liberty Mutual did not timely deny liability for this claim”.
•Rutkowski also addressed the issue of David not knowing he had a workplace injury:
•“How do you intend to prove that Mr. bell knew he had a work injury in January of 1999? His doctors did not know what was wrong with him at that time. It would be obvious to most attorneys - and maybe even you will be able to figure this out - Mr Bell could not have known that had a work injury if his doctors did not know what was wrong with him.”
•STATUTE OF LIMITATIONS - Labor Code §5405–The statute of limitations is tolled by an employer's failure to notify its injured worker of a potential right to benefits, as required by Labor Code §5401(a). Such tolling ends when the injured worker gains actual knowledge of the potential for workers' compensation benefits. (SeeKaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (1985) 39 Cal.3d 57.) ___Cal.App.4th___
Also addressed in Judge Dugan’s November 21, 2007 Report and Recommendation on Petition For Reconsideration was why David felt his requests for discovery were necessary:
•“Applicant does not explain why any records he wanted in the discovery process would have entitled him to a finding that his claim arose out of and in the course of his employment.”
•To the contrary, David’s REPEATED attempts for discovery would have in fact shed light on the fact there were indeed hazards at the workplace, both biological and chemical. This in itself can be found on Agraquest’s own filing with the Securities and Exchange Commission in which it is stated:
•"Our research and development activities involve the controlled use of hazardous materials and disposal of biological and other hazardous waste. Some of these materials may be novel, including bacteria with novel properties and bacteria that produce biologically active compounds."
Also stated in Judge Dugan’s November 21, 2007 Report and Recommendation on Petition for reconsideration:
•“Labor Code 3600 (a)(10) barred applicant’s claim as he was terminated from employment on June 1, 199 or June 2, 1999, and filed a DWC-1 claim on October 3, 2003, over four years after his termination of employment”.
•As Attorney Hollie Rutkowski so well explained it in January 2005:
“His doctors did not know what was wrong with him at that time.” and “Mr Bell could not have known that had a work injury if his doctors did not know what was wrong with him.”
•David had a cumulative and progressive workplace injury/illness/disease. He didn’t know at the time he got sick in 1999 nor when his position was being terminated that he would have years and years of after effects of being employed at Agraquest and being exposed, without knowledge to unknown microorganisms.
•The bacteria and fungus he did know he was exposed to was believed to be “safe” as was told him by the Agraquest founder, Pam Marrone but also scientists that were in management positions.
It is rather odd that Judge Dugan, upon her decision to deny David's workers compensation rights to benefits in a state that says it is a "no fault" state with respect to workers compensation benefits would say that David’s "occupational group" was 111. [Occupation group 111]. Is this the practice of employers and insurance carriers within the state of California to maintain lower premiums?
•Occupational Group Characteristics: Group 111: Professional & Clerical Occupations; Substantial use of keyboards; greater demands for standing and walking than 112 and 120; Typical occupations: Accountant, Claims Clerk, Reservations Agent. Disability & Weighted Occupational Variant The body part effected: Spine, Shoulder, Elbow, Wrist, Finger Motion, Grip, Leg, Psych SEE Occupations and Group Numbers.
•A microbiologist DOES NOT fall within Occupational Group Characteristics: Group 111 category.
•This is out and out FRAUD being committed within the state of California if not on the Federal level as well.
