Author: WorkCompAcademy

A new California Workers Compensation Institute study finds treatment patterns for California workers’ comp professional medical services have stabilized in recent years, with only minor changes in the utilization rates and volume of services rendered to injured workers within the first two years for indemnity claims with 2014 through 2019 initial treatment dates, and within the first six months for indemnity claims with 2018 through 2021 initial treatment dates.

The study uses data from CWCI’s Industry Research Information System (IRIS) database to analyze professional medical services from non-COVID indemnity claims to determine the percent of claims that involved a major surgery within two years of the initial treatment date. The authors then calculated the percent of claims with and without major surgery from each of the initial treatment years that utilized Evaluation and Management (E? Physical Medicine; Advanced Imaging; Mental Health; and Injection services.

Among the key findings:

– – Since 2014, the percentage of indemnity claims involving a major surgery in the first 2 years has declined 1 percentage point per year, falling from 28% of the 2014 claims to 23% of the 2019 claims.
– – Across the 6-year span of the study, surgical claims averaged about 7 to 9 more E&M visits in the first 2 years than claims without major surgery.
– – The share of claims that had Physical Medicine services in the first 24 months showed little change, even after the pandemic was declared. Claims with major surgery have consistently averaged about 26 Physical Medicine visits in the first 2 years, more than twice the average for claims without major surgery.
– – Use of Advanced Imaging in the initial 24 months was also fairly stable across the 6 initial treatment years, ranging from 40 to 42% of the claims without major surgery and from 61 to 64% of the surgical claims.
– – Only 5 to 6% of the claims without major surgery and 6 to 7% of the surgical claims received Mental Health services in the first 24 months of treatment, with almost no change in the prevalence of these services among claims in which initial treatment was rendered in 2018 and 2019.
– – Though the percentage of claims with Mental Health services showed little change after the pandemic was declared, the average number of Mental Health visits within 24 months increased in the 2 most recent years.
– – About half of all claims with surgery had Injections compared to 17 to 18% of claims without major surgery.
– – The 6-month data on claims with 2018 to 2021 initial service dates showed pandemic-related disruptions to medical service delivery had little impact on the prevalence or volume of early treatment provided.

The full study provides a detailed look at California workers’ compensation professional medical service utilization trends for initial treatment years 2014 through 2021, including graphics and additional analyses. CWCI has published the study in a Research Update Report, “Patterns in the Provision of Professional Medical Services in California Workers’ Compensation.”

A Florida man who once was the director of operations at a now-shuttered Irvine pharmacy was sentenced to 114 months in federal prison for his role in a scheme in which kickbacks were paid for prescriptions for “compounded” medications – a scam that cost Tricare, the United States military’s health care plan, more than $3 million in losses.

Marcus Orlando Armstrong, 56, of Miami, was sentenced by United States District Judge Otis D. Wright II, who also ordered Armstrong to pay $3,070,091 in restitution.

Armstrong pleaded guilty in October 2022 to two counts of paying illegal kickbacks for health care referrals.

Armstrong was the director of operations for the now-defunct Irvine Wellness Pharmacy, which made compounded medications. Compounded drugs are tailor-made products doctors may prescribe when the Food and Drug Administration-approved alternative does not meet the health needs of a patient.

In mid-2014, Armstrong agreed to pay a physician, identified in court documents as “N.G.,” kickbacks in exchange for prescriptions bearing N.G.’s name and credentials. Armstrong intended that Irvine Wellness Pharmacy would fill the prescriptions and Tricare would pay to reimburse them. Armstrong further intended to receive a portion of the reimbursements and then, out of those funds, Armstrong intended to pay kickbacks to N.G.

In February 2015, Armstrong wrote two checks – one for $16,418 and the other for approximately $10,000 – to N.G. that were noted as being for “marketing.” In fact, the checks were illegal kickback payments to N.G. in exchange for prescriptions that were not medically necessary.

A co-defendant, Sandy Mai Trang Nguyen, 42, of Irvine, was found guilty by a jury in November 2022 of 21 counts of health care fraud and one count of obstruction of a federal audit. Nguyen was the pharmacist-in-charge at Irvine Wellness Pharmacy.

According to evidence presented at Nguyen’s trial, from late 2014 to May 2015, Nguyen and others under her supervision filled approximately 1,150 compounded prescriptions for pain, scarring and migraines that Tricare reimbursed for tens of thousands of dollars per prescription. Nearly all the prescriptions were sent to the pharmacy by so-called marketers who were paid kickbacks of nearly half of the Tricare reimbursements paid to the pharmacy.

The beneficiaries were solicited to provide their Tricare insurance information for medications they did not seek out or need, and most were never examined by a physician. The prescriptions were electronically sent from marketers or telemedicine businesses and submitted by the pharmacy for reimbursement even though Tricare rules excluded reimbursements for claims based on telemedicine visits and would not, in any event, have been authorized had Tricare known the prescriptions originated based upon the payment of kickbacks.

Nguyen’s sentencing hearing is scheduled for April 3.

Co-defendants Leslie Andre Ezidore, 53, of West Los Angeles, and Alexander Michael Semenik, 51, of Las Vegas, have pleaded guilty to felony charges in this case and await sentencing.

The International Association of Fire Fighters is a labor union representing paid full-time firefighters and emergency medical services personnel in the United States and Canada. The IAFF was formed in 1918 and is affiliated with the AFL-CIO in the United States and the Canadian Labour Congress in Canada. It represents more than 334,000 fire fighters across the United States and Canada.

The National Fire Protection Association (NFPA) is a global self-funded nonprofit organization, established in 1896, devoted to eliminating death, injury, property and economic loss due to fire, electrical and related hazards.

In what it calls “the next step in its fight to combat fire fighter cancer”, the International Association of Fire Fighters filed suit March 16 against the National Fire Protection Association (NFPA) for its role in imposing a testing standard that effectively requires the use of toxic forever chemicals known as PFAS, in fire fighter protective gear,

Section No. 8.62, a provision in NFPA Standard on Protective Ensembles for Structural Fire Fighting and Proximity Fire Fighting (Standard 1971), requires certain components of fire fighter bunker gear to pass the Ultraviolet Light Degradation Test. The test requires turnout gear to be exposed to UV light for 40 hours without degradation. The only substance that can pass the test for that long is PFAS.

A June 2020 study of bunker gear by researchers at the University of Notre Dame analyzed 30 new and used bunker jackets and pants originally marketed, distributed, and sold in 2008. 2014, and 2017, by six bunker gear makers, and found high levels of PFAS in bunker gear worn, used, or handled by fire fighters.

IAFF General President Edward Kelly said however that: “Even when presented with independent science on the health and safety risks, the NFPA has refused to help save our lives,”

The complaint, International Association of Fire Fighters v. National Fire Protection Association, Inc., seeks to hold the NFPA liable for not removing the dangerous test from its Standard 1971.

On March 6, 2023, President Joseph R. Biden, speaking to fire fighters in Washington, pledged, ,..We’re going after toxic exposure to PFAS, so-called ‘forever chemicals’ that for years have been in your gear, your equipment … that you depend on to be able to do your job.”

PFASs are human-made chemicals first invented in the 1930s. As of 2021, PFASs are defined as fluorinated substances that, with a few noted exceptions, any chemical with at least a perfluorinated methyl group or a perfluorinated methylene group is a PFAS.

PFAS are known as °’forever chemicals,” and per the Stockholm Convention on Persistent Organic Pollutants (to which the U S is a signatory) are defined as: Persistent- because they do not break down through organic processes or in the environment; Transboundary – as they migrate through surface and ground water, as well as in the atmosphere and through wildlife; and Bio-accumulative – as they concentrate within our bodies and are passed to the fetus within the womb and though breast milk. Exposure to PFAs in humans can occur through inhalation, ingestion and dermal contact. The two most widely known and studied PFAS are PFOA and PFOS.

According to the OECD, at least 4,730 distinct PFASs are known, which contain at least three perfluorinated carbon atoms. The United States Environmental Protection Agency (EPA) toxicity database, DSSTox, lists 14,735 unique PFAS chemical compounds. PubChem lists approximately 6 million.

Many PFASs were used in the mid-20th century in products and on materials due to their enhanced water-resistant properties, such as within Teflon or aqueous film forming foam. Only since the start of the 21st century has the environmental impact and toxicity to human and mammalian life been studied in depth. PFASs are commonly described as persistent organic pollutants because they remain in the environment for long periods of time, and are also known as “forever chemicals”.

Certain PFASs are no longer manufactured in the United States, as a result of phase-outs including the PFOA Stewardship Program (2010-2015), in which eight major chemical manufacturers agreed to eliminate the use of PFOA and PFOA-related chemicals in their products and as emissions from their facilities. Although PFOA and PFOS are no longer manufactured in the United States, they are still produced internationally and are imported into the US in consumer goods such as carpet, leather and apparel, textiles, paper and packaging, coatings, rubber and plastics.

An estimated 26,000 U.S. sites are contaminated with PFASs. At least six million Americans are estimated to have drinking water containing PFASs above the safe limit published prior to 2022 by the U.S. Environmental Protection Agency (EPA).

In 2021 California banned PFASs for use in food packaging and from infant and children’s products and also required PFAS cookware in the state to carry a warning label. In 2021, Maine became the first U.S. state to ban these compounds in all products by 2030, except for instances deemed “currently unavoidable.”

Much of the bunker gear worn by fire fighters is made by Lion who is is the fifth largest manufacturer of bunker gear in the United States. W. L. Gore & Associates markets these products. Neither of them are named as defendants in the complaint, but both are discussed as opposing efforts by the IAFF to change the NFPA standard mandating PFAS in bunker gear.

Plaintiffs allege that NFPA, Lion, Gore and others entered into agreements before an after adoption Section No. 8.62 of Standard 1971 which they claim to be an actionable “civil conspiracy” for which they seek “judgment in its favor against Defendant NFP A for compensatory damages in an amount to be determined by a jury, injunctive relief requiring NFPA to immediately rescind Section No. 8.62 of NFPA 1971, together with prejudgment interest, post-judgment interest, costs and expenses, attorneys’ fees and costs , and such other relief as this Court deems just and equitable.”

Gov. Gavin Newsom may have been prescient when he acknowledged free speech concerns as he signed California’s covid misinformation bill last fall. In a message to lawmakers, the governor warned of “the chilling effect other potential laws may have” on the ability of doctors to speak frankly with patients but expressed confidence that the one he was signing did not cross that line.

California’s covid misinformation law, which took effect Jan. 1, is being challenged by vaccine skeptics and civil liberties groups. Among those suing to get the law declared unconstitutional is a group founded by Robert F. Kennedy Jr., who has questioned the science and safety of vaccines for years.

According to Kaiser Health news. the law – meant to discipline doctors who give patients false information about covid-19 – is now in legal limbo after two federal judges issued conflicting rulings in recent lawsuits that say it violates free speech and is too vague for doctors to know what it bars them from telling patients.

In two of the lawsuits, Senior U.S. District Judge William Shubb in Sacramento issued a temporary halt on enforcing the law, but it applies only to the plaintiffs in those cases. Shubb said the law was “unconstitutionally vague,” in part because it “fails to provide a person of ordinary intelligence fair notice of what is prohibited.” His ruling last month clashed with one handed down in Santa Ana in December; in that case, U.S. District Judge Fred Slaughter refused to halt the law and said it was “likely to promote the health and safety of California covid-19 patients.”

Plaintiffs in the Santa Ana case, two doctors who have sometimes diverged from public health guidelines, appealed Slaughter’s ruling allowing the law to stand. The case has been combined in the 9th U.S. Circuit Court of Appeals with another case in which a San Diego judge declined to rule on a similar request to temporarily halt the law.

But doubts about the law are not confined to those who have battled the scientific mainstream.

Dr. Leana Wen, a health policy professor at George Washington University who previously served as president of Planned Parenthood and as Baltimore’s health commissioner, wrote in an op-ed a few weeks before Newsom signed the law that it would exert “a chilling effect on medical practice, with widespread repercussions that could paradoxically worsen patient care.”

The Northern California affiliate of the American Civil Liberties Union has weighed in against the law on free speech grounds, though the national organization has affirmed the constitutionality of covid vaccine mandates.

“If doctors are scared of losing their licenses for giving advice that they think is helpful and appropriate, but they don’t quite know what the law means, they will be less likely to speak openly and frankly with their patients,” said Hannah Kieschnick, an attorney with the ACLU of Northern California.

The law establishes that doctors who give false information about covid to patients are engaging in unprofessional conduct, which could subject them to discipline by the Medical Board of California or the Osteopathic Medical Board of California.

But the law lacks such specifics, defining misinformation only as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”

Michelle Mello, a professor of law and health policy at Stanford University, said the wording is confusing. “On a matter like covid, science is changing all the time, so what does it mean to say there is scientific consensus?” she asked. “To me, there are lots of examples of statements that clearly, with no vagueness involved, meet the definition of the kind of conduct that the legislature was going after. The problem is that there are all kinds of other hypothetical things that people can say that don’t clearly violate it.”

Dr. Christine Cassel, a professor of medicine at the University of California-San Francisco, said she expects the law to be applied only in the most flagrant cases. “I trust scientists enough to know where there’s a legitimate dispute,” she said.

Cassel’s view mirrors Newsom’s rationale for signing the legislation despite his awareness of potential free speech concerns. “I am confident,” he wrote in his message to lawmakers, “that discussing emerging ideas or treatments including the subsequent risks and benefits does not constitute misinformation or disinformation under this bill’s criteria.”

General Insurance Company (GEICO) insurance policies require payment of actual cash value (“ACV”) upon the total loss of a covered auto and define ACV as the “replacement cost” of the auto, less depreciation.

A consolidated class action was filed in the United States District Court, Northern District of California, against GEICO alleging that it breached the terms of private passenger auto insurance policies issued to Plaintiffs, and similarly situated insureds, by failing to properly include or calculate sales tax (as to leased vehicles) and regulatory fees (as to all vehicles).

Plaintiffs argue that (1) the insurance policies require Defendant to include sales tax on the cost to purchase a replacement vehicle when paying leased-vehicle claims; and (2) under Cal. Ins. Code § 2695.8(b)(1), registration fees for the “remaining term of the loss vehicle’s current registration” should be calculated on an end-of-month (rather than, as Defendant contends, a beginning-of-month) basis or, alternatively, on a daily (not monthly) basis.

Over the course of two years, the parties engaged in motion practice, extensive production and review of documents and class-wide data, and multiple depositions, including the depositions of corporate representatives, class representatives, and expert witnesses.

After multiple mediation sessions the parties reached a settlement. The Court granted preliminary approval of the settlement on July 28, 2022, and final approval on March 15, 2023.

Approval of a class settlement is appropriate when plaintiffs must overcome significant barriers to make their case. The Court found in this case that the amount offered in settlement is reasonable in light of the substantial risk that Plaintiffs would face in litigating the case. According to Plaintiffs, litigation of these claims through trial presents significant challenges to prevailing on the merits since no California court, state or federal, has held that insureds who leased a vehicle are entitled, upon a total-loss determination, to full payment of sales tax.

They cite to unfavorable decisions regarding Defendant’s policy language, including three federal courts of appeal that have considered similar claims and ruled in favor of the insurers.

Although the Court expressed concerns at the preliminary approval stage regarding the claims-made structure of this settlement, the actual monetary benefit to the class has turned out to be substantial, even if less than anticipated. Defendant has conducted a preliminary audit of submitted claims, and the actual estimated cash benefit for the class is $6,200,000.

The settlement recovery is particularly compelling for the Sales Tax Class, where each class member will receive 100% of the sales tax (and thus 100% of the potential recovery). On average, class members with valid claims will receive more than $2,000. Plaintiffs estimate a total payout to the Sales Tax Class of approximately $5,800,000.

For the Regulatory Fees class, each class member will receive $6.88, which represents 50% of the potential recovery. Plaintiffs estimate a total payout to the Regulatory Fees Class of approximately $402,824.

The amount offered in the settlement is another factor that weighs in favor of approval. Based on the facts in the record and the parties’ arguments at the final fairness hearing, the Court found that the settlement amount falls “within the range of reasonableness” in light of the risks and costs of litigation.