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Workers' Compensation Daily News for Jul 20, 2018

WCAB Updates Subpoenas - Do You Need Them?
Thu, 19 Jul 2018 08:44:41 - Pacific Time
The Workers’ Compensation Appeals Board has approved new and updated subpoena forms.The fillable forms are posted on the DWC website and will also be made available at the district offices.

There are two types of subpoenas. The first, called subpoena, compels a person to testify before a court, or other legal authority.

The second, called subpoena duces tecum (pronounced "doo-seez tee-kum"), requires a person to produce documents, materials, or other tangible evidence. A subpoena may be requested in any kind of litigation. But these new subpoenas are to direct the appearance of persons or the production of documents or other tangible things before the Workers' Compensation Appeals Board.

Subpoenas can also be used to compel the attendance of a witness or the production of documents at a deposition.

There is now a new form for a Subpoena (DWC WCAB 30), as well as a new form for a Subpoena Duces Tecum (DWC WCAB 32)

Both a subpoena and a subpoena duces tecum require personal service of the subpoena on the witness. Service of a subpoena should be accomplished by a registered process server, or peace officer. There are alternatives such as when the witness agrees to accept the subpoena in some other way, or to voluntarily appear and produce.

Service of subpoenas may be costly and time consuming.

An alternative to actually physically serving a subpoena on a party, is a process known as a "Notice to Appear" or "Notice to Produce."

One of the WCAB Rules of Practice and Procedure (California Code of Regulations, Title 8, Section 10532) states that "A notice to appear or produce in accordance with Code of Civil Procedure Section 1987 is permissible in proceedings before the Workers' Compensation Appeals Board."

CCP Section 1987 then specifies that service of a subpoena on "a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person," is not required if you use a Notice to Appear more than 10 days before appearance is required. And documents can be required by way of a Notice to Produce if served more than 20 days before required." However a Notice to Appear and Produce cannot be used on a non-party. Non-parties must always be served with a subpoena.

There are other requirements specified in CCP Section 1987 that must be carefully followed to use this alternative. Read More...

New Non-Opioid Pain Killer in Late Stage Trials
Thu, 19 Jul 2018 08:44:35 - Pacific Time
An experimental osteoarthritis drug developed by Pfizer Inc and Eli Lilly and Co achieved its main goal of lowering pain in a late stage trial, the companies said on Wednesday, potentially offering a safer alternative to opioids.

The experimental drug tanezumab is undergoing clinical trials for the treatment of various pain entities, including chronic low back pain, bone cancer pain, and interstitial cystitis. Tanezumab is part of an investigational class of pain medications known as nerve growth factor (NGF) inhibitors.

Tanezumab works by selectively targeting, binding to and inhibiting NGF. NGF levels increase in the body as a result of injury, inflammation or in chronic pain states.

By inhibiting NGF, tanezumab may help to keep pain signals produced by muscles, skin and organs from reaching the spinal cord and brain.

Tanezumab has a novel mechanism that acts in a different manner than opioids and other analgesics, including nonsteroidal anti-inflammatory drugs (NSAIDs), and in studies to date tanezumab has not demonstrated a risk of addiction, misuse or dependence.

The study demonstrated that patients who received two doses of tanezumab separated by eight weeks experienced a statistically significant improvement in pain, physical function and the patients’ overall assessment of their OA, compared to those receiving placebo.

"There is a substantial need for innovative new treatment options for osteoarthritis, as many patients are unable to find relief with currently available medicines and continue to suffer," said Ken Verburg, tanezumab development team leader, Pfizer Global Product Development.

"We are encouraged by these results, which speak to the potential of tanezumab as a non-opioid treatment option for pain reduction and improvement in physical function in people living with osteoarthritis pain."

Preliminary safety data showed that tanezumab was generally well tolerated, with approximately 1% of patients discontinuing treatment due to adverse events. Rapidly progressive osteoarthritis was observed in tanezumab-treated patients at a frequency of less than 1.5%, and was not observed in the placebo arm. There were no events of osteonecrosis observed in the trial. No new safety signals were identified.

In June 2017, Pfizer and Lilly announced that the U.S. Food and Drug Administration (FDA) granted Fast Track designation for tanezumab for the treatment of OA pain and CLBP.

Tanezumab is the first NGF inhibitor to receive Fast Track designation, a process designed to facilitate the development and expedite the review of new therapies that treat serious conditions and fill unmet medical needs. Read More...

Physician Indictments Snares So. Cal. QME
Wed, 18 Jul 2018 09:47:58 - Pacific Time
Two local physicians were indicted by a federal Grand Jury as part of Operation "Spinal Cap," which targeted a long-running health care fraud scheme that generated nearly $1 billion in fraudulent claims to the federal government, the state of California, and private insurers.

The scheme involved more than $40 million in illegal kickbacks paid to doctors and other medical professionals in exchange for referring thousands of patients who received surgeries and other services at Pacific Hospital.

Jacob Tauber, 66, of Beverly Hills, an orthopedic surgeon, and Serge Obukhoff, 62, of Malibu, a neurosurgeon, were charged for their roles in receiving illegal kickbacks to influence the referral of patients to Pacific Hospital. The indictment also includes honest services fraud and Travel Act charges against both Tauber and Obukhoff.

Tauber is currently listed by the DWC Medical Unit as a QME with offices in Beverly Hills, Glendale and Palm Desert. He is listed as a QME in the category of "Spine' as well as "Orthopedic Surgery."

According to the 65 page indictment, Tauber performed non-spinal surgeries and referred patients to other surgeons for procedures at Pacific Hospital of Long Beach. Obukhoff practiced out of various medical clinics in Southern California. Influenced by the promise of kickbacks and bribes, Tauber and Obukhoff caused patients with insurance or other covered claims to receive surgeries and services at Pacific Hospital.

The kickbacks involved Philip Sobol M.D. According to the indictment "Sobol would receive remuneration to induce his referral of patients potentially requiring surgery ("Sobol Referrals") to a "stable" of doctors, including, from at least 2009, defendant TAUBER, and from at least in or about June 2011 to in or about May 2012, defendant OBUKHOFF, who would both know of Sobol's kickback arrangement with Pacific Hospital, and who would facilitate that arrangement by performing surgery on Sobol Referrals at Pacific Hospital. The illegal kickback and bribe payments would be provided to Sobol under the guise of pharmacy and option agreements."

In the same indictment, Tauber was separately charged with receiving illicit payments to refer urinalysis specimens to a specific lab. According to the indictment "Advanced Practice Serv1ces, Inc., doing business as Advance Pharmacy Services ("APS"), was a "marketing" entity owned and controlled by Drobot Jr. that steered ancillary service referrals, purchases, and orders involving magnetic resonance imaging ("MRis"), toxicology testing, and durable medical equipment ("DME") to business affiliates that paid APS for generating such business."

The case is being investigated by the United States Postal Service, Office of the Inspector General and the Federal Bureau of Investigation, and is being prosecuted by Assistant United States Attorneys Ashwin Janakiram of the Major Frauds Section and Joseph T. McNally and Scott D. Tenley of the Santa Ana Branch Office. Read More...

DCA Affirms Fraud Conviction Restitution Order
Wed, 18 Jul 2018 09:47:49 - Pacific Time
Cynthia Ann Smith owned and operated a flower shop in Menlo Park.

In 2015, a multi-agency task force investigated Smith’s business, which revealed she failed to pay correct workers’ compensation insurance premiums and related payroll taxes over the course of several years.

Pursuant to a negotiated disposition, Smith pled no contest to count 1 workers’ compensation fraud (Ins. Code, § 11760, subd. (a) and count 14. failure to collect, account, or pay over required tax amounts.

Under the terms of the plea agreement it was agreed she would not be sentenced to state prison; she would be granted probation with a maximum of 90 days to be served in county jail; all other counts and allegations would be dismissed; the amount of restitution would be reserved and determined by the court subject to a Harvey waiver; and the court would consider reducing felony counts 1 and 14 to misdemeanors (Pen. Code, § 17) and terminating probation upon full payment of restitution.

At sentencing, the trial court suspended imposition of sentence, placed Smith on formal probation for five years, with terms and conditions including 90 days in county jail and imposition of statutory fines and fees. Smith objected to the restitution report and requested a restitution hearing.

At the hearing, Smith stipulated to restitution amounts awarded to the California Employment Development Department ($41,187 plus interest); to FTD Company ($61,783 plus interest); and to State Farm Insurance Company ($12,998 plus interest) Smith contested amounts claimed by James Waldschmidt. Waldschmidt asserted a restitution claim for over $100,000.

Waldschmidt testified at the restitution hearing that he met Smith in a bar in San Carlos in 2014. She offered him a place to live at her home in Menlo Park, a full-time job as a driver, and a rate of pay starting at $10 per hour. Waldschmidt totaled his work hours weekly and gave Smith a copy of the wage statement. He was never paid and claimed $45,000 for unpaid work and overtime.

The court ordered Smith to pay Waldschmidt $15,000 in restitution for unpaid wages including overtime hours, less an offset of $800 in unpaid rent, for a total of $14,200 plus interest. Smith appealed the restitution order. The Court of Appeal affirmed in the unpublished case of People v Cynthia Ann Smith.

A court may use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole and which is consistent with the purpose of rehabilitation. (In re Brian S. (1982) 130 Cal.App.3d 523, 527.) Even though the amount was contested, the record does not indicate the court awarded anything in excess of the victim’s actual economic losses. (People v. Smith (2011) 198 Cal.App.4th 415, 431 [except under Pen. Code, § 1202.4, subd. (f)(3)(F), “restitution orders are limited to the victim’s economic damages”].) Smith fails to raise an arguable issue. Read More...

Corona QME Charged with Fraud - Keeps License
Tue, 17 Jul 2018 07:24:30 - Pacific Time
A Corona physician pleaded not guilty to charges of felony workers’ compensation insurance fraud and perjury, and can continue to practice medicine while his case proceeds.

Dr. Sanjoy Banerjee, 42, entered the pleas Monday in Riverside County Superior Court. Banerjee is free on bond. His next court date is Aug. 16.

Along with the arraignment, a judge turned down a request from the California Medical Board to keep Banerjee from practicing medicine until his case is resolved.  

"His alleged conduct is not only unprofessional, but also dangerous, and evinces poor character, a lack of integrity, and and inability or unwillingness to follow the law," the state’s recommendation to suspend Banerjee’s practice said.

The physician’s attorney countered that the state Medical Board had "failed to meet (the) basic threshold of showing a logical connection " between the allegations of insurance fraud and perjury and Dr. Banerjee’s fitness or competence to practice medicine."

The Riverside District Attorney’s Office has charged the QME  May 29, 2018, with two counts of workers' compensation insurance fraud and five counts of perjury.

Banerjee claims on his website that he is the Founder and Medical Director of Pacific Pain Care.

An investigation conducted by the DA’s Bureau of Investigation found that from November 2014 through December 2016, Banerjee, a Wildomar- and Corona-based workers’ compensation pain management doctor, allegedly illegally self-referred workers’ compensation patients to a clinical laboratory and an office-based surgical center he owned.

Through that laboratory and surgical center, Dr. Banerjee allegedly billed more than $180,000 for urine toxicology testing and/or epidural injections.

Dr. Banerjee also reportedly signed at least five doctor’s reports declaring under penalty of perjury he had not referred patients to his own companies. The investigation revealed that Dr. Banerjee referred some of his workers’ compensation patients to his business, Rochester Imperial Surgical Center, which was located in a patient exam room inside the Pacific Pain Care office suite in Wildomar.

The case, RIF1802535 is being prosecuted by Deputy DA Kristen Allison of the DA’s Insurance Fraud Team. Read More...

Last Pain Clinic Defendant Pleads Guilts
Tue, 17 Jul 2018 07:24:22 - Pacific Time
John Thomas Terrence, 75, of Marina del Rey, pleaded guilty to health care fraud involving a scheme to defraud the California workers’ compensation insurance system.

According to court documents, Terrence, a clinical psychologist, saw patients in Bakersfield by "Skype," generated reports for each patient that were virtually word-for-word identical, and then submitted identical bills to the insurance companies.

Co-defendants Bhahar Gharib-Danesh, 41, of Woodland Hills, and Na Young Eoh, 44, of Bakersfield, were chiropractors working at the same company. They previously pleaded guilty to health care fraud charges in this case.

According to a federal indictment Gharib-Danesh was a chiropractor and the manager of Pain Relief Health Centers (PRHC). PRHC was headquartered in Los Angeles, and had clinics in Bakersfield, Visalia and Fresno, as well as in Los Angeles County.

Na Young Eoh was also a chiropractor, and was the treating physician for PRHC’s Kern County workers’ compensation claims..

PRHC recruited patients who were workers claiming to have an injury. In treating the patients, Gharib instructed her staff to add as many injured body parts for treatment as possible to generate higher billings. The treatment plan generally included shock wave therapy, electro stimulation therapy, myo-facial release/massage, physical therapy, chiropractic manipulation, compound creams, and psychological evaluation.

Nearly every patient was scheduled for the same treatments, and the maximum amount of treatments allowed by law was generally billed to the insurance company.

Eoh operated out of the Bakersfield Clinic, the Visalia Clinic, and the Fresno Clinic and would sign the treatment plans and referral forms. The indictment further alleges that Gharib directed Eoh to refer all patients who came into the clinic to Terrence for a psychological evaluation, regardless of the injury the patient reported. Terrence submitted bills and reports for each patient that were virtually identical. He also allegedly fraudulently billed for patients at a rate higher than legally allowed. According to the indictment,

Terrence provided each patient with approximately 20.8 hours of psychological evaluations in a single day. On one day, Terrence billed a total of 291.2 hours for treating 14 patients. In one period of two weeks, Terrence billed over a thousand hours treating patients and writing reports. Between 2005 and 2012, Terrence submitted claims for psychological services in workers’ compensation cases totaling in excess of $5.6 million.

Pain Free Diagnostics Inc. (dba Pain Free Management) pleaded guilty on July 9, 2018, to conspiracy to commit health care fraud and agreed to pay restitution to the defrauded worker’s compensation insurers in the amount of $1.2 million. Read More...

L.A. Times Expose Features LAPD Comp Fraud
Mon, 16 Jul 2018 08:43:30 - Pacific Time
A stunning investigative report published by the Los Angeles Times provides several examples of Los Angeles police officers and fire fighters filing and recovering what it claims are exaggerated or outright fake "skin and contents" workers compensation claims costing taxpayers billions of dollars.

In one example, the Times reports that former LAPD Officer Jonathan Hall ended his career the way many veteran officers do these days, claiming job-related injuries across most of his body. Hall filed claims saying he’d injured his knees, hips, heart (high blood pressure), back, right shoulder - even his right middle finger.

The ailments had existed for months, in some cases years, and had not previously prevented him from working, Hall said in a recent interview. But he was burned out, the target of an internal affairs investigation and desperate to avoid going back to the station. Hall’s timing raised suspicion, and he was soon videotaped leading scuba dives and lifting heavy equipment despite the alleged injuries.

But, according to the Los Angeles Times, he is far from alone in asserting that so many parts of his body had been injured on the job.

In fact, claims involving at least five injured body parts have become by far the most common in California, according to a Times data analysis of millions of workers’ compensation cases spanning nearly three decades. In the past, injuries to a single body part - a knee, a shoulder, the lower back - were the most prevalent, the data show.

The strategy is common among veteran cops and firefighters who get up to a year off at their full salary, tax free, for each job-related injury their doctor diagnoses. Their employers also pay the associated medical bills and often a hefty cash settlement based on the extent and severity of the injuries.

Multiple lawyers and patients involved with the workers’ compensation system described a similar process: An officer nearing the end of his career goes to an attorney’s office complaining about a sore shoulder and is asked how his knees feel, if his back aches or if he is under a lot of stress. He is then referred to a doctor with whom the attorney has a long-standing relationship.

After a few decades on the job, it’s not hard for a client to fill out what industry insiders call a "skin and contents" case, attorney Paul Young said. Young is an attorney who was a partner at two high-profile Los Angeles-area law firms that represent cops and firefighters.

Thousands of such claims have been filed by participants in Los Angeles’ controversial Deferred Retirement Option Plan - or DROP, as it’s known - which allows veteran cops and firefighters to collect their salaries and pensions simultaneously for the last five years of their careers.

A Times investigation in February found that nearly half of the people who have joined the program since its inception in 2002 subsequently went out on injury leave - at nearly twice their normal pay - typically for bad backs, sore knees and other injuries that afflict aging bodies regardless of profession.

As an example, the Times reports that  former Los Angeles Fire Capt. John Kitchens was paid more than $1.5 million while in DROP - $645,000 of that in extra pension payments - despite missing more than a year and a half on injury and sick leave, city payroll records show.

Despite his health issues, Kitchens was able to travel to the Galapagos Islands in January 2013 to dive with hammerhead sharks, according to his Facebook page. In the comments beneath a photo of him in scuba gear on a boat at Gordon Rocks - a bucket-list destination for many divers - his only complaint was that the photos he took of the massive sharks underwater turned out blurry.

There’s nothing unusual about what he did, Hall said, and he knows many other officers who have engaged in more strenuous physical activity while out with injuries.

He’s willing to speak out about the workers’ compensation abuse because he has nothing left to lose, Hall said. Other cops and firefighters who have been through the system won’t talk, he said, because doing so would "screw over a lot of their friends. It’s corrupt, and a lot of people do it." Read More...

LAPD Employee Sentenced for Fraud
Mon, 16 Jul 2018 08:43:23 - Pacific Time
The Los Angeles County District Attorney’s Office announced.that a former civilian employee of the Los Angeles Police Department pleaded guilty to one felony count of insurance fraud.

Deputy District Attorney Arunas Sodonis of the Healthcare Fraud Division said Gerald Ray Pulley (DOB - 12/5/66),had been on temporary disability leave and was cleared to go back to work in February 2017, but he didn’t return to his job.

Instead, Pulley allegedly returned to his other job working as a security guard while continuing to receive disability benefits from the police department, Sodonis said.

Pulley, who worked as a senior clerk typist, will have the charge reduced to a misdemeanor if he pays restitution of $3,491 and does 50 hours of community service as part of the negotiated plea agreement.

He is scheduled to return for a sentencing hearing on July 12, 2019, in Department 50 of the Foltz Criminal Justice Center.

Pulley resigned from the LAPD in March.

Case BA464228 was investigated by the Los Angeles Police Department’s Special Operations Division, Workers’ Compensation Fraud Unit. Read More...

First 3D Color X-ray Dramatically Improves Diagnostics
Fri, 13 Jul 2018 09:14:39 - Pacific Time
A high-contrast, black-and-white image of your bones is an effective tool for spotting fractures or breaks. But after 120+ years, x-ray imaging is getting a remarkable update with 3D, full-color images that reveal far more than just the bones inside you. These images will improve what a doctor can diagnose without cutting you open.

The traditional approach to imaging the insides of a patient involves blasting them with x-rays. This electromagnetic radiation has a shorter wavelength than visible light, so it can easily pass through soft tissue, but it has more trouble passing through harder materials like bones. On the other side of your body, a sensor, or film, produces an image based on the intensity of the x-rays that make it through, thus revealing what’s inside you.

A New Zealand company called Mars Bioimaging has developed a new type of medical imaging scanner that works in a similar fashion, but borrows technology developed for the Large Hadron Collider at CERN to produce far more detailed results. The Medipix3 chip works similar to the sensor in your digital camera, but it detects and counts the particles hitting each pixel when a shutter opens.

When used in the new scanner developed by father and son scientists Phil and Anthony Butler from the Universities of Canterbury and Otago in New Zealand, the Medipix3 chip, enhanced with custom data-processing algorithms, can detect the change in wavelengths as x-rays pass through different materials in the body. This allows the scanner to differentiate bone, muscle, fat, liquids, and all the other material in the human body, while additional software uses that data to produce stunning full-color images that allow a three-dimensional view of the inside of the body.

While the flat black-and-white x-rays doctors currently use are typically enough for them to notice if the bone in your arm has a fracture, they reveal very little about the tissue and muscle surrounding that bone. Doctors could use these new 3D x-rays to help diagnose issues in the bone and everything around it, too.

So while a doctor is examining images of your arm, looking for signs of a break or fracture after a nasty fall, he or she could also look for other potentially dangerous medical conditions that might not be apparent in typical x-ray results. In fact, smaller test versions of this scanner are already being used to study cancer, as well as bone and joint health in patients—but the technology will be useful in countless other medical fields as well, from dentistry to brain surgery.

It will be years before the new Spectral CT scanner receives all the clearances and approvals it needs so that it can be used in hospitals and clinics. But it’s well past the research stages at this point, and clinical trials are expected to get underway in New Zealand in the coming months.

"This technology sets the machine apart diagnostically because its small pixels and accurate energy resolution mean that this new imaging tool is able to get images that no other imaging tool can achieve," Phil Butler said in a CERN news release. Read More...

DWC Announces New Pharmacy and Therapeutics Committee
Fri, 13 Jul 2018 09:14:18 - Pacific Time
The Division of Workers’ Compensation announced the formation of the Pharmacy and Therapeutics (P&T) Committee.

The P&T Committee is established pursuant to Assembly Bill No. 1124 (2015) as an advisory body that will consult with the DWC Administrative Director on updates to the Medical Treatment Utilization Schedule Drug Formulary.

The committee’s first meeting will be held on Wednesday, September 26 from 12:30 p.m. to 3:30 p.m. in the Elihu M. Harris State Building, conference room #1 on the second floor, located at 1515 Clay Street in Oakland. The P&T Committee will be chaired by DWC Executive Medical Director Raymond Meister, M.D. The six appointees are California-licensed medical doctors and pharmacists.

"We were fortunate to receive applications from many distinguished physicians and pharmacists for this committee and selected a very well qualified team for this important work,” said Dr. Meister. “DWC appreciates the commitment of these volunteer committee members and looks forward to a productive collaboration that will improve the therapeutic outcomes for the many injured workers that rely on the MTUS Drug Formulary."

Each member of the P&T Committee will serve a term of two years and remain in the position until the selection of a successor. The current committee members are:

-- Lori A. Reisner, Pharm.D.
-- Todd Shinohara, Pharm.D.
-- Raymond Tan, Pharm.D.
-- Basil R. Besh, M.D.
-- Rajiv P. Das, M.D.
-- Steven Feinberg, M.D.

The agenda and further information regarding the P&T Committee meeting will be posted on the DWC MTUS Drug Formulary web page at least 10 days prior to the meeting and will also be distributed to the DWC Newsline mailing list.

The public may submit questions or comments about the formulary to the DWC MTUS Drug Formulary email inbox: formulary@dir.ca.gov. Read More...

Past Week News Archive


No Medical Marijuana for Maine Injured Workers: Thu, 12 Jul 2018 08:34:45 - Pacific Time: Read More...


So. Cal. Man to Serve 26 Years for Counterfeit Opioids: Thu, 12 Jul 2018 08:34:28 - Pacific Time: Read More...


Former NBA Player to Serve 5 Years for Fraud Scheme: Wed, 11 Jul 2018 10:56:11 - Pacific Time: Read More...


Cal/OSHA Fines Company $205K for Forklift Fatality: Wed, 11 Jul 2018 10:56:06 - Pacific Time: Read More...


Drug Makers Slammed for Recent Price Hikes: Tue, 10 Jul 2018 08:15:17 - Pacific Time: Read More...


FDA Okays Late-Stage Trials of Non Opioid Pain Drug: Tue, 10 Jul 2018 08:15:11 - Pacific Time: Read More...


5 Carriers Form Blockchain Alliance for Claims: Mon, 9 Jul 2018 10:01:24 - Pacific Time: Read More...


Santa Maria Insurance Agent Pleads Guilty: Mon, 9 Jul 2018 10:01:19 - Pacific Time: Read More...


Southland Psychiatrist Arrested: Fri, 6 Jul 2018 08:29:13 - Pacific Time: Read More...


So. Cal. Pharmacy Settles DEA Charges: Fri, 6 Jul 2018 08:29:07 - Pacific Time: Read More...