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Workers' Compensation Daily News for Sep 19, 2018

Applicant Waived Right to New Panel for Untimely QME Eval
Tue, 18 Sep 2018 06:39:11 - Pacific Time
Janelle Bogue claimed an injury to her back, neck, shoulders, chest, knee and right ankle while employed as an accounting tech for the County of Solano.

On November 3, 2017, the Medical Unit issued a QME Panel in response to defendant's request.. Dr. D'Amico was the last remaining physician after both parties' respective strikes. Applicant avers that her attorney called Dr. D'Amico's office on November 20, 2017, and as the doctor was scheduling beyond 60 days, directed his assistant to request a replacement panel.

On December 13, 2017, defendant sent a letter to applicant advising her that she was scheduled to be evaluated by Dr. D'Amico on February 12, 2018.

Applicant and defendant both sent letters to the PQME describing the issues to be addressed at the evaluation. Applicant attended the February 12, 2018 PQME evaluation as scheduled.

On February 13, 2018, applicant sent a letter to Dr. D'Amico asking him not to issue a report as there was a dispute as to whether he was the correct PQME.

On March 2, 2018, defendant filed a Declaration of Readiness to Proceed to an expedited hearing on the issue of applicant's allegation that Dr. D'Amico should not serve as the PQME. On March 15, 2018, applicant objected to the Declaration of Readiness to Proceed alleging that she had requested a replacement QME panel.

At the expedited hearing, applicant contended that a replacement panel is appropriate as she requested one on December 18, 2017; applicant acknowledges that neither defendant nor the Medical Unit apparently received the request.

Defendant contended that Labor Code § 4062.2 authorized it to schedule the PQME and that Rule 31.3(e) allows the party with the right to schedule a PQME appointment to waive the requirement that a PQME be scheduled in 60 days.

On April 17, 2018, the WCJ issued the Findings wherein he determined that Dr. D' Amico was duly selected to serve as the PQME and that nothing in the record supports a determination that he should not continue to do so.

Applicant filed a Petition for Removal, which was denied in the panel decision of Janelle Bogue v County of Solano.

Applicant had the initial right to arrange an appointment for an evaluation with the PQME per section 4062.2(d). As she failed to inform defendant that she could not obtain an appointment within 10 days of Dr. D' Amico's selection, under the circumstances here, the right to schedule the appointment switched to defendant.

The WCJ thus correctly concluded that he should remain as the PQME. Read More...

15 Workers Recover $450K in Wage Theft Case
Tue, 18 Sep 2018 06:39:01 - Pacific Time
Labor Commissioner Julie A. Su has secured a settlement to recover more than $450,000 in wages, penalties and interest for 15 residential care workers who suffered overtime and other wage theft violations. L’Chaim House agreed to make the payments after the Labor Commissioner’s Office sued to block the San Rafael-based residential care business from transferring ownership of its real estate to evade penalties. A lien against the real estate will ensure the payments are made.

The Labor Commissioner’s Office opened an investigation in December 2015 after workers at L’Chaim House’s two locations reported labor law violations. Investigators audited 36 months of the employer’s payroll records and found caregivers frequently worked more than 12 hours a day without overtime pay.

Citations totaling $486,399 were issued in February 2016 for minimum wage, overtime, meal period and wage statement violations. L’Chaim House appealed the fines, which were upheld in both an administrative hearing and in a decision by the Sonoma County Superior Court on September 20, 2017.

Shortly after the citations were issued, the owner of L’Chaim House placed its real estate in a trust to avoid legal liability for the wage citations.

The Labor Commissioner filed a lawsuit on September 29, 2017 in Marin County for civil fraudulent transfer. As a result of the lawsuit, L’Chaim House agreed to pay more than $450,000 of the penalties and wages owed. L’Chaim House also committed to full compliance with employment and labor laws going forward as part of the settlement.

The 15 workers will receive settlement payments ranging from $49 to $77,807, with an average payout of $25,008 each. The settlement payment also included $74,900 in civil penalties payable to the state. In addition, part of the amount owed - $89,080 for meal period penalties - remains in dispute before an appellate court. If upheld, $77,430 of those penalties would also go to the workers with the remainder to the state.

In 2016, Governor Edmund G. Brown Jr. signed into law Senate Bill 588 (de León), which gave the Labor Commissioner’s Office more tools to collect citations and wage payment orders. The law added sections to the labor code allowing the Labor Commissioner to levy the bank accounts and receivables of employers that fail to comply with judgments for unpaid wages. Since the law went into effect, the Labor Commissioner has issued more than 4,848 levies. These levies have resulted in more than $3.4 million in payments and payment agreements for workers.

The law also enabled the Labor Commissioner’s Office to issue stop orders against scofflaw employers until they pay their workers. The Labor Commissioner has investigated potential actions related to 166 different judgments, and issued 29 stop orders. Over the last year, these investigations and stop orders led to the recovery of more than $1,099,800 in payments and payment plans for wages owed to workers. Read More...

Coca-Cola Considering Cannabis Drinks - "For Pain"
Mon, 17 Sep 2018 08:21:54 - Pacific Time
Coca-Cola Co. said it’s eyeing the cannabis drinks market, becoming the latest beverage company to tap into surging demand for marijuana products. Coke’s possible foray into the marijuana sector comes as beverage makers are trying to add cannabis as a trendy ingredient while their traditional businesses slow.

According to a report from BNN Bloomberg Television, the company says it’s monitoring the nascent industry and is interested in drinks infused with CBD -- the non-psychoactive ingredient in marijuana that treats pain but doesn’t get you high. The Atlanta-based soft drinks maker is in talks with Canadian marijuana producer Aurora Cannabis to develop the beverages.

"We are closely watching the growth of non-psychoactive CBD as an ingredient in functional wellness beverages around the world," Coca-Cola spokesman Kent Landers said in an emailed statement to Bloomberg News. "The space is evolving quickly. No decisions have been made at this time." Landers declined to comment on Aurora.

Coca-Cola has already been diversifying as consumption of soda continues to decline. The company, with its iconic brands ranging from Coke and Sprite to Powerade, announced it will acquire the Costa Coffee chain for $5.1 billion in August, and has expanded into other products including juice, tea and mineral water over the past decade.

Last month, Corona beer brewer Constellation Brands Inc. announced it will spend $3.8 billion to increase its stake in Canopy Growth Corp., the Canadian marijuana producer with a value that exceeds $10 billion.

Molson Coors Brewing Co. is starting a joint venture with Quebec’s Hexo’s Corp., formerly known as Hydropothecary Corp., to develop cannabis drinks in Canada. Diageo PLC, maker of Guinness beer, is holding discussions with at least three Canadian cannabis producers about a possible deal, BNN Bloomberg reported last month. Heineken NV’s Lagunitas craft-brewing label has launched a brand specializing in non-alcoholic drinks infused with THC, marijuana’s active ingredient.

The discussions with Aurora are focused on CBD-infused drinks to ease inflammation, pain and cramping, according to the BNN Bloomberg report. CBD, or cannabidiol, is the chemical in the pot plant often used for medicinal purposes, and doesn’t produce the high that comes from THC, or tetrahydrocannabinol. There are no guarantees of any deal between Aurora and Coca-Cola, according to the report. Aurora Comment

Heather MacGregor, a spokeswoman for Aurora, said in an emailed statement that the cannabis producer has expressed specific interest in the infused-beverage space, and intends to enter that market, BNN Bloomberg’s David George-Cosh reported.

While marijuana remains illegal at the national level in the U.S., there is growing acceptance of the use of CBD derived from marijuana to treat illnesses ranging from chronic pain to anxiety and epilepsy. The first-ever medical treatment derived from a marijuana plant will hit the U.S. market soon, after regulators in June gave an epilepsy treatment by GW Pharmaceuticals Plc the green light. Read More...

El Centro Task Force Seizes 20,000 Fake Oxycodone Pills
Mon, 17 Sep 2018 08:21:47 - Pacific Time
Jose Atalo Felix-Beltran, Arturo Felix-Beltran (U.S. citizens), and Osvaldo Felix-Beltran (U.S. resident) living in Indio, California, were arraigned in federal court on charges that they conspired to distribute over 20,000 tablets of fentanyl. These three defendants are brothers who were arrested together on September 13, 2018, in El Centro, California,

According to a federal criminal complaint, these three brothers drove together to a restaurant located in El Centro, California, where they intended to sell 20,000 tablets of fentanyl to a purchaser who, unbeknownst to them, was an undercover Special Agent with the Drug Enforcement Administration. Two of the brothers attempted to flee the scene, but were apprehended following a brief foot chase. The third brother was not able to flee and, following a brief period of forcible resistance, was ultimately taken into custody.

This arrest followed a series of prior transactions where the brothers, together and at times alone, sold undercover DEA agents additional tablets of fentanyl.

At the brothers’ initial appearance in El Centro before U.S. Magistrate Judge Ruth Bermudez Montenegro, the United States requested detention based on risk of flight. Judge Bermudez Montenegro scheduled a detention hearing for September 21, 2018 at 1:30 p.m. and a preliminary hearing for September 27, 2018 at 1:30 PM.

The fentanyl tablets that were to be sold to undercover agents on September 13, 2018 were tablets of fentanyl manufactured to look like 30mg tablets of oxycodone.

The combined weight of the tablets seized from the three brothers on September 13, 2018, was approximately 2.23 kilograms of fentanyl. The retail street value of these fentanyl tablets is estimated to be $600,000.

This case is the result of ongoing efforts by the Organized Crime Drug Enforcement Task Force ("OCDETF"), a partnership that brings together the combined expertise and unique abilities of federal, state and local law enforcement agencies. Read More...

Senators Want the VA to Prescribe Marijuana to Vets
Fri, 14 Sep 2018 09:18:04 - Pacific Time
So far, the California workers' compensation system has not been required to pay for "medical marijuana" as treatment for industrial injuries. But, in 2014, New Mexico became the first state to have a state appellate court order a workers’ compensation insurance carrier to provide reimbursement to an injured worker for medical marijuana

The Appellate Division of the Maine Workers' Compensation Board affirmed two different administrative law judge awards reimbursing workers for their medical marijuana expenses, Bourgoin v. Twin Rivers Paper Co. and Noll v. Lepage Bakeries.

And later, an ALJ in New Jersey issued an order in Watson v. 84 Lumber requiring reimbursement of an injured worker for medical marijuana payment

And now, Senators Brian Schatz (D-Hawaii) and Bill Nelson (D-Fla.) introduced legislation this week to allow doctors at the U.S. Department of Veterans Affairs to prescribe medical marijuana to veterans in the 31 states that have established medical marijuana programs.

This Act is to be cited as the "Veterans Medical Marijuana Safe Harbor Act."

The Act proclaims that "chronic pain affects the veteran population, with almost 60 percent of veterans returning from serving in the Armed Forces in the Middle East, and more than 50 percent of older veterans, who are using the health care system of the Department of Veterans Affairs living with some form of chronic pain."

"And it says "in 2011, veterans were twice as likely to die from accidental opioid overdoses as nonveterans. States with medical cannabis laws have a 24.8 percent lower mean annual opioid overdose mortality rate compared with States without medical cannabis laws."

The proposed law would "allow veterans to use, possess, or transport medical marijuana and to discuss the use of medical marijuana with a physician of the Department of Veterans Affairs as authorized by State law, and for other purposes."

In addition to creating a temporary, five-year safe harbor protection for veterans who use medical marijuana, the bill would also direct the VA to research how medical marijuana could help veterans better manage chronic pain and reduce opioid abuse.

"In the 31 states where medical marijuana is legal, patients and doctors are able to see if marijuana helps with pain management. Our veterans deserve to have that same chance," Senator Schatz said. "This bill does right by our veterans, and it can also shed light on how medical marijuana can help with the nation’s opioid epidemic."

The bill is supported by the American Academy of Pain Medicine, Veterans Cannabis Project, Veterans for Medical Cannabis Access, Americans for Safe Access, NORML, Marijuana Policy Project, Drug Policy Alliance, Multidisciplinary Association for Psychedelic Studies, Veterans Cannabis Coalition and National Cannabis Industry Association.

The bill however is in conflict with the federal Controlled Substances Act (21 U.S.C. 801 et seq.). The federal government classifies marijuana as a schedule 1 drug, meaning it's perceived to have no medical value and a high potential for abuse. The classification puts marijuana in the same category as heroin and a more restrictive category than schedule 2 drugs like cocaine and methamphetamine. Read More...

New Concept - High Impact Chronic Pain (HICP)
Fri, 14 Sep 2018 09:17:55 - Pacific Time
Chronic pain, one of the most common reasons adults seek medical care. Chronic pain contributes to an estimated $560 billion each year in direct medical costs, lost productivity, and disability programs.

High Impact Chronic Pain (HICP), is a new concept that describes those with pain lasting three months or longer and accompanied by at least one major activity restriction.

The concept of HICP was first proposed by the National Pain Strategy to better identify those with significant levels of life interference.

The National Pain strategy was core recommendation of the 2011 Institute of Medicine Report: Relieving Pain in America. Recommendation 2-2 said that "The Secretary of the Department of Health and Human Services should develop a comprehensive, population health-level strategy for pain prevention, treatment, management, education, reimbursement, and research that includes specific goals, actions, time frames, and resources."

The National Pain Strategy, is the first national effort to transform how the population burden of pain is perceived, assessed, and treated, recognizes the need for better data to inform action and calls for estimates of chronic pain and high-impact chronic pain in the general population.

Together, the HICP population constitutes some 4.8 percent of the U.S. adult population. About 83 percent of people with HICP were unable to work for a living, and one-third had difficulty with self-care activities such as washing themselves and getting dressed. Almost 11 million U.S. adults have High Impact Chronic Pain.

Activity limitations were more common in the chronic pain population than in groups with other chronic health conditions, such as stroke, kidney failure, cancer, diabetes, or heart disease.

"By differentiating those with HICP, a condition that is associated with higher levels of anxiety, depression, fatigue, and cognitive difficulty, we hope to improve clinical research and practice," said M. Catherine Bushnell, Ph.D., scientific director in the NCCIH Division of Intramural Research and another author of the study.

"It is crucial that we fully understand how people’s lives are affected by chronic pain. It will help improve care for individuals living with chronic pain and strategically guide our research programs that aim to reduce the burden of pain at the population level," said Linda Porter, Ph.D., director of the Office of Pain Policy at NINDS. Read More...

County of L.A. Pre-Employment Physical Case Settles for $.5M
Thu, 13 Sep 2018 09:39:36 - Pacific Time
The California Department of Fair Employment and Housing (DFEH) reached a settlement in an employment discrimination case with the County of Los Angeles involving two complainants who were denied or delayed positions with the County due to the County’s over broad pre-employment medical examination requirements.

One of the complainants was denied a position with the Los Angeles County Sheriff’s Department for more than 4 years because it was revealed during her pre-employment medical exam that she had a thyroid condition, although she did not have any restrictions on her ability to perform the job.

The other complainant was denied a position with the County when he revealed during his pre-employment medical exam that he had a prior knee injury although he too did not have any work restrictions.

DFEH found cause to believe violations of the Fair Employment and Housing Act had occurred and filed civil complaints in Los Angeles County Superior Court in April and June 2017 (case numbers BC663789 and BC658050).

In settling the case, the County of Los Angeles agreed to amend its civil service rules about pre-employment medical examinations and will overhaul its medical examination process to only consider medical information that is directly relevant to the job being applied for.

In addition, the County will provide regular disability discrimination training and has agreed to be subject to three years of monitoring by a neutral third party and DFEH to ensure compliance with the agreement.

The County will also pay a total of $560,000. Of that, $410,000 will be paid directly to a complainant and $150,000 to the DFEH for fees and costs. (The second complainant previously resolved the financial aspect of his case.)

"California employers are only permitted to seek medical information from applicants that is directly related to the job for which they are applying," said DFEH Director Kevin Kish. "Overbroad requests for medical information or denying an applicant a job because of future risk of injury is unlawful."

Alexandra Seldin, Senior Staff Counsel, Olivia Tran, Senior Staff Counsel, and Paula Pearlman, Assistant Chief Counsel represented DFEH in this proceeding. Read More...

Discrimination for Refusal to Hire Medical Marijuana Home User
Thu, 13 Sep 2018 09:39:24 - Pacific Time
Employers in California and elsewhere are closely watching case law that slowly erodes limits to employer liability for actions regarding the use of Medical Marijuana outside the workplace. A recent decision in a federal trial court in Connecticut is one of the cases that are making employers nervous about their policies.

In the case of Noffsinger v. SSC Niantic Operating, No. 3:16-cv-01938 (D. Conn.), a federal judge ruled that refusing to hire a medical marijuana user because she tested positive on a pre-employment drug test violates Connecticut's medical marijuana law as it granted summary judgment to the job applicant on her employment discrimination claim.

Plaintiff Katelin Noffsinger was diagnosed with post-traumatic stress disorder (PTSD) in 2012 after being in a car accident. Her caregiver recommended treating her PTSD with medical marijuana, which she began using in 2015. In accordance with Connecticut Palliative Use of Marijuana Act (PUMA), plaintiff registered with the Department of Consumer Protection in November 2015 as a qualifying patient for the use of medical marijuana.

Noffsinger accepted a job offer from defendant SSC Niantic Operating Company, LLC d/b/a Bride Brook Health & Rehabilitation Center. But the offer was contingent on drug testing, and plaintiff told defendant that she was qualified under PUMA to use marijuana for medical purposes to treat her post-traumatic stress disorder. After her drug test came back positive for THC consistent with the use of marijuana, defendant rescinded its job offer.

She filed suit against the employer in federal court. After the parties conducted discovery they cross-moved for summary judgment.

Bride Brook argued that its refusal to hire Noffsinger is allowed by an exception to PUMA's anti-discrimination provision (when "required by federal law or required to obtain federal funding"). It argued that the federal Drug-Free Workplace Act (DFWA) barred it from hiring Noffsinger because that law prohibits federal contractors from allowing employees to use illegal drugs. Marijuana is illegal under federal law.

The court rejected Bride Brook's argument, noting that the DFWA does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty.

Similarly, the court rejected Bride Brook's argument that hiring Noffsinger would violate the False Claims Act. It held that hiring an employee who uses medical marijuana outside of work while off-duty would not defraud the federal government.

Bride Brook also argued that it did not violate PUMA because it did not discriminate against Noffsinger based on her status as a medical marijuana user; rather, it had relied on the positive drug test result. The court dismissed this argument, concluding that acceptance would render a medical marijuana user's protection under the statute a nullity.

While the court held that the employer had engaged in employment discrimination, it declined to award Noffsinger attorney fees or punitive damages because those types of damages are not expressly recoverable under PUMA.

Additionally, the court dismissed Noffsinger's claim for negligent infliction of emotional distress, because the employer did not engage in "unreasonable conduct" and Noffsinger chose to give notice to her prior employer that she was resigning before she had advised Bride Brook of her medical marijuana use.

Although this is a development at the trial court level in a jurisdiction outside of California which is not binding precedent here, nonetheless employment law attorneys who have been watching these cases evolve in Connecticut and elsewhere suggest that employers should consider the marijuana laws affecting their workplaces now, before an issue arises, and adjust their policies as necessary. Read More...

RAND Says 1/3 of Opioid Prescriptions Unjustified
Wed, 12 Sep 2018 05:41:10 - Pacific Time
Over the past decade, American doctors failed to provide a written medical justification for nearly one-third of opioid prescriptions.

Researchers from RAND Corporation and Harvard Medical School published a study Tuesday in the journal Annals of Internal Medicine showing 28.5 percent of the roughly 809 million doctor visits that resulted in a prescription for opioid painkillers between 2006 and 2015 lacked medical records showing a chronic pain condition or any symptoms of pain related to the patient, reports CNN.

Roughly 5.1 percent of opioid prescriptions were written for cancer patients suffering from breakthrough pain, while 66.4 percent were for patients with non-cancer related pain. Researchers note that while a lack of documented justification does not necessarily reveal "a nefarious purpose on the part of the doctor," it might explain in part how Americans became so dependent on opioids.

"For these visits, it is unclear why a physician chose to prescribe an opioid or whether opioid therapy is justified," said Dr. Tisamarie B. Sherry, a researcher for RAND Corporation and lead author of the study, according to CNN. "The reasons for this could be truly inappropriate prescribing of opioids or merely lax documentation. - If a doctor does not document a medical reason for prescribing an opioid, it could mean that the prescription is not clinically appropriate."

A study published Aug. 1 in medical journal The BMJ reveals that between 2007 and 2016, the percentage of commercially insured patients prescribed opioids held steady at 14 percent.

The study, lead by Molly Moore Jeffery of the Mayo Clinic in Rochester, Minnesota, investigated the individual patient data of 48 million people with health insurance, both commercial and through Medicare. The prescription data was then converted into milligram morphine equivalents (MME). They found the average MME dosage across all patients reviewed in the study was higher in 2016 than in 2007, a level Jeffery said is a "point where you see a greater risk of overdose."

The researchers advocate for a general shift within the medical community away from opioids, however, Jeffery does not advocate legislative solutions that end up impacting patient access to crucial medication.

Data released by officials with the CDC on July 11 shows the majority of opioid-linked deaths are the result of synthetic opioids like fentanyl. The report shows synthetic opioids killed roughly 27,000 people across the U.S. over the 12-month period ending November 2017, up from roughly 19,413 lives in 2016 and 9,580 lives in 2015. Read More...

Man Sentenced for Pharmaceutical Trafficking
Wed, 12 Sep 2018 05:41:04 - Pacific Time
Lahkwinder Singh and his corporation, Lovely Singh Inc., have been convicted for the illegal trafficking of pharmaceuticals.

While doing business as a franchise of shipping company Postal Annex, Lovely Singh Inc. facilitated the shipment of controlled pharmaceutical drugs such as hydrocodone, Xanax and oxycodone through the mail.

Lahkwinder Singh, the CEO of the company was sentenced i to 36 months in federal prison. The 36-month sentence is one of the longest imposed in the Southern District of California for a structuring conviction.

Singh’s closely held corporation, Lovely Singh, Inc., was ordered to forfeit $1,000,000, and serve a 5-year term of probation.

Singh owned and operated Postal Annex franchises in Lemon Grove, California, under the name Lovely Singh. According to the complaint, Singh engaged in a multi-year pattern of cash transactions below the $10,000 threshold to avoid detection by banks and law enforcement, with the intent to deposit Lovely Singh’s cash proceeds free from scrutiny.

The plea agreement admits that Singh and his co-defendant Lovely Singh Inc. distributed Schedule II controlled substances to persons throughout the United States.

Couriers imported pre-packaged quantities of controlled substances into the United States from Mexico and delivered them to the Postal Annexes. The substances were then illegally sold for prices ranging between $1 and $100.

The plea agreement also states that Singh attempted to set up $2,955,521 of currency transactions through 469 cash deposits at several domestic financial institutions. Singh conducted multiple deposits of less than $10,000 in cash on the same day. He also made deposits into at least 19 different bank accounts over the course of several business days.

These deposits were conducted with the purpose of avoiding a Currency Transaction Report, which is the report a financial institution must file for cash deposits exceeding $10,000 during any banking day. These cash deposits included money received in return for shipping controlled substances from the Postal Annex stores.

Singh was ultimately charged with and found guilty of Structuring Currency Transactions with One or More Financial Institutions. Read More...

Past Week News Archive

Scientists Re-generate Wound Tissue: Tue, 11 Sep 2018 07:00:07 - Pacific Time: Read More...

Surveillance Convicts Nursing Assistant: Tue, 11 Sep 2018 07:00:02 - Pacific Time: Read More...

Person Behind Opioid Epidemic Patents Addiction Treatment: Mon, 10 Sep 2018 09:25:10 - Pacific Time: Read More...

New Study - Why Do Some Feel More Pain?: Mon, 10 Sep 2018 09:25:02 - Pacific Time: Read More...

Ortho AME to Serve 7 Years for Child Pornography: Fri, 7 Sep 2018 09:12:57 - Pacific Time: Read More...

DIR Reports IMR Efficiently Resolves Disputes: Fri, 7 Sep 2018 09:12:46 - Pacific Time: Read More...

WCIRB Quarterly Update - Mostly Good News: Thu, 6 Sep 2018 06:50:00 - Pacific Time: Read More...

Six L.A. Garment Contractors Fined $.5 Million: Thu, 6 Sep 2018 06:49:53 - Pacific Time: Read More...

Cal Chiropractic Association Sues One Call Medical: Wed, 5 Sep 2018 10:22:48 - Pacific Time: Read More...

2018 Drug Prices Fell 5.8% in Second Quarter: Wed, 5 Sep 2018 10:22:58 - Pacific Time: Read More...