Author: WorkCompAcademy

Kaiser Health News reports that about 350 physicians came to Capitol Hill this week to lobby Congress on behalf of the American Medical Association. Although they left their white coats at home, they were still there as doctors.

Their goal was to build support for the organization’s “Recovery Plan for America’s Physicians” – a wish list that includes a pay raise, relief from insurance company prior-authorization demands, and more federally funded residency slots to train more physicians.

In a speech to physician and medical student leaders from across the country last year, American Medical Association President Gerald E. Harmon, M.D., unveiled the AMA Recovery Plan for America’s Physicians. It seeks fundamental changes to create a health system that better supports patients and physicians today and over the long run.

It outlines a five-point strategy to strengthen the physician workforce, recover from the trauma of the pandemic, and improve health care delivery by eliminating some of the most common pain points that threaten to drive physicians from practice.

The AMA’s comprehensive approach includes:

– – Supporting telehealth to maintain gains in coverage and payment.
– – Reforming Medicare payment to promote thriving physician practices and innovation.
– – Stopping scope creep that threatens patient safety.
– – Fixing prior authorization to reduce the burden on practices and minimize dangerous care delays for patients.
– – Reducing physician burnout and addressing the stigma around mental health.

Dr. Harmon noted that “Physician shortages, already projected to be severe before COVID, have almost become a public health emergency. If we aren’t successful with this Recovery Plan, it’ll be even more challenging to bring talented young people into medicine and fill that expected shortage.”

Thus he also proposed that the barriers that are keeping people out, particularly students from underrepresented communities be addressed.

– – We need to reduce the amount of debt medical students must carry to complete their educations, now over 200,000 dollars, especially as we attract physicians to rural America.
– – We need to expand the number of residency training slots and remove caps to Medicare-funded positions that Congress put in place long ago.
– – And we need to win funding from Congress to support the creation of new medical schools and residency programs at Historically Black Colleges and Universities, Hispanic-Serving Institutions, and Tribal Colleges and Universities.

The AMA represents about 250,000 doctors, roughly a quarter of the U.S. physician workforce. And sending its members in droves to Washington to make their case is nothing new. But this was the first organized group effort in more than three years, because of the covid-19 pandemic.

While the AMA has a full staff of lobbyists in Washington, association officials say their best weapon is often doctors themselves, who wrestle with insurance company red tape and bureaucratic reimbursement rules every day. “There is nothing quite like telling members of Congress how things work in their district,” said Dr. Jack Resneck Jr., AMA president and a dermatologist at the University of California-San Francisco.

3 Stonedeggs, Inc. – (DBA California Sandwich Company) business was to provide food service to firefighters and forestry workers at various locations. The employer won a contract to provide food service at a remote location near Happy Camp, California, and it was expected that the job would last 3 to 6 months.

The employer asked employees assigned to its Brownsville camp to volunteer to work at Happy Camp, a remote location without cellular telephone services where it was to serve meals for the three-to-six month period.

Braden Nanez and two other employees from the Brownsville camp agreed to travel to work providing food service at Happy Camp, and the employer authorized Nanez to drive his own car from Brownsville to his residence and then to Happy Camp.

On October 5, 2020, the day of the vehicular accident at State Highway 263/Shasta River Bridge, Nanez worked the breakfast shift and, afterwards, at about 9:00 a.m., commenced a seventy-mile drive to Yreka in his own car. He texted manager Brossard later that he would return for his next shift at about 4:00 p.m., a timeframe permitting daytime travel in his off hours.

The employer was not informed of his reasons for traveling to Yreka, but manager Todd surmised that it was to use his cellular telephone.

On April 26, 2022, the matter proceeded to trial as to the following issues: “Injury arising out of and in the course of employment per Labor Code section 3600(a), (the going and coming rule); and intoxication.”

The WCJ found that applicant (1) did not sustain injury arising out of and in the course of employment (AOE/COE); (2) violated company policy when he left the worksite without permission on the date of his injury; and (3) was engaged in a material deviation and complete departure from his employment at the time of injury. The WCJ ordered that Nanez take nothing on his workers’ compensation claim.

On reconsideration, Nanez contended that the evidence established that he was engaged in an activity reasonably expected to be incident to his employment at the time of his injury, and, therefore, that the commercial traveler rule applies to his accident.

The WCAB agreed, and rescinded the F&O, and substituted findings that the commercial traveler rule applies to his accident, that his claim is not barred by the going and coming rule and intoxication, and that he sustained injury AOE/COE in the form of a fracture to the right femur, and deferred his claim of injury to other body parts in the panel decision of Nanez v 3 Stonedeggs, Inc – ADJ14015513 (February 2023)

A commercial traveler is regarded as acting within the course of his employment during the entire period of his travel upon his employer’s business.” (Wiseman v. Industrial Acc. Comm.(1956) 46 Cal.2d 570, 572 [21 Cal.Comp.Cases 192].) The California Supreme Court made clear that, “[i]n the case of a commercial traveler, workers’ compensation coverage applies to the travel itself and also to other aspects of the trip reasonably necessary for the sustenance, comfort, and safety of the employee.”

As the Court of Appeal observed, an employee away on business can “hardly [be] expected to remain holed up in his hotel room.” (Fleetwood Enterprises, Inc. v. Workers’ Comp. Appeals Bd. (Moody) (2005) 134 Cal.App.4th 1316, 1327 [70 Cal.Comp.Cases 1659].)

The test is whether the activity during the injury is one “that an employer may reasonably expect to be incident to its requirement that an employee spend time away from home.” (IBM Corp. v. Workers’ Comp. Appeals Bd. (Korpela) (1978) 77 Cal.App.3d 279, 283 [43 Cal.Comp.Cases 161].)

In Korpela, the issue presented was whether an employee’s death from an automobile accident while on a weekend trip to visit relatives during the course of an out-of-town training program was compensable under the commercial traveler rule. Evaluating whether the weekend trip was within the course of employment or a non-compensable “distinct departure on a personal errand,” the court found that the weekend trip was a leisure time activity normally incident to an out-of-town temporary assignment, a conclusion further supported by the fact that the employee’s supervisor knew of the visit and encouraged it. (Korpela, supra, at p. 283.)

Because 3 Stonedeggs, Inc (1) allowed applicant to travel by his own car from the Brownsville camp to his Chico home and then return to continue his work there; (2) sought and obtained applicant’s agreement to travel to Happy Camp on its business; (3) authorized applicant to travel to Happy Camp using his own car; and (4) did not instruct applicant to refrain from using his own car during his off hours or for personal reasons, applicant’s conduct in using his own car during his off hours to drive from Happy Camp to Yreka was conduct reasonably expected by defendant to be incidental to its requirement that he spend time away from home.

A San Fernando Valley pharmacist who used forged prescriptions to illegally sell narcotics, including opioids, to phony “patients” has been sentenced to 24 months in federal prison, the Justice Department announced today.

Gevork Danielian, 41, of Granada Hills, was sentenced on Monday by United States District Judge Mark C. Scarsi, who also ordered him to pay a $100,000 fine.

Danielian pleaded guilty in November 2022 to one count of conspiracy to distributed controlled substances.

From December 2014 to July 2020, Danielian owned and operated the Winnetka-based A&G Vitalife Inc., which did business as A&G Care Pharmacy at 7235 Corbin Ave, Winnetka California, where he worked as the pharmacist-in-charge.

From April 2018 to December 2018, Danielian conspired with others to unlawfully sell narcotics, including hydrocodone, oxycodone, methamphetamine salts, and alprazolam, an anxiety medication sold under the brand name Xanax.

A co-conspirator would obtain blank prescription papers, Danielian would then provide – usually by text message – the names and dates of birth of individuals to be falsely identified as patients, which the co-conspirator would then use to fill in the falsified prescriptions.

The co-conspirator would bring the falsified prescriptions to Danielian, bearing the forged signatures of real physicians. Danielian would “fill” the prescriptions in exchange for money despite knowing the narcotics were not going to be used for a legitimate medical purpose, but rather were going to be illicitly sold by his co-conspirator.

Danielian filled prescriptions for hundreds of pills of opioids and other narcotics during the conspiracy.

For example, on October 29, 2018, Danielian filled prescriptions for approximately 120 pills of 30-milligram strength oxycodone each for two fictitious patients, using a forged prescription falsely purporting to have been written by a physician.

In November 2020, the California State Board of Pharmacy placed Danielian on probation for four years and discontinued his business after he was accused of record-keeping deficiencies and dispensing narcotics authorized by fraudulent prescriptions.

According to the Accusation made by the State Board of Pharmacy, “During the course of the investigation into A&G and Danielian, an investigator found A&G and Danielian failed to maintain records of acquisition and disposition of dangerous drugs; dispensed erroneous prescriptions; failed to complete a required pharmacy self-assessment, failed to comply with reporting requirements to the Department of Justice, and participated in unprofessional conduct.”

“Pharmacists, by training and education, should be gatekeepers to help prevent abuse, addiction, and overdose,” prosecutors argued in a sentencing memorandum. “[Danielian] flouted this responsibility and instead became an agent of addiction and abuse.”

The Drug Enforcement Administration investigated this matter. Assistant United States Attorney Maria Jhai of the Terrorism and Export Crimes Section prosecuted this case.

Nearly three quarters of U.S. physicians (74%) are employed by hospitals, health systems or corporate entities as of January 1, 2022, according to new data from Avalere, in a study sponsored by the Physicians Advocacy Institute (PAI) that examined physician practice trends over the three-year period between 2019 and 2021. This is an increase from 69% of U.S. physicians being employed just last year.

Health systems and corporate entities have been steadily acquiring physician practices for years, but Avalere researchers found the trend has accelerated drastically since the onset of COVID-19. More than one hundred thousand (108,700) physicians became employees since January 2019. Of those, 83,000 (76%) became employees since the pandemic began.

Corporate entities such as private equity firms and health insurers are driving the spike in these trends. Corporate purchases of practices increased by 86% during the study period, and corporate employment of physicians increased by 43%. In 2021, corporate entities acquired 13,600 additional physician practices. In comparison, hospital, and health system purchases of practices (9%) and employment of physicians (11%) continued at steadier rates.

PAI’s data also back up the American Medical Association’s latest national survey that highlighted the largest shift in physician employment the professional group has seen since kicking off the biennial poll in 2012. Susan R. Bailey, M.D., president of the organization at the time, pointed to a handful of potential factors in the shift ranging from a new crop of young physicians entering the workforce to COVID-19 disruption.

And this trend brings up the question: How is this going to change the quality of medical care for the public? Anecdotal reports that may answer this question are beginning to appear in the media.

A recent report by Kaiser Health News says that private equity companies pool money from wealthy investors to buy their way into various industries, often slashing spending and seeking to flip businesses in three to seven years. While this business model is a proven moneymaker on Wall Street, it raises concerns in health care, where critics worry the pressure to turn big profits will influence life-or-death decisions that were once left solely to medical professionals.

Nearly $1 trillion in private equity funds have gone into almost 8,000 health care transactions over the past decade, according to industry tracker PitchBook, including buying into medical staffing companies that many hospitals hire to manage their emergency departments.

KHN says that two firms dominate the ER staffing industry: TeamHealth, bought by private equity firm Blackstone in 2016, and Envision Healthcare, bought by KKR in 2018. Trying to undercut these staffing giants is American Physician Partners, a rapidly expanding company that runs ERs in at least 17 states and is 50% owned by private equity firm BBH Capital Partners.

These staffing companies have been among the most aggressive in replacing doctors to cut costs, said Dr. Robert McNamara, a founder of the American Academy of Emergency Medicine and chair of emergency medicine at Temple University.

American Physician Partners employs fewer doctors in its ERs as one of its cost-saving initiatives to increase earnings, according to a confidential company document obtained by KHN and NPR.

This staffing strategy has permeated hospitals, and particularly emergency rooms, that seek to reduce their top expense: physician labor. While diagnosing and treating patients was once their domain, doctors are increasingly being replaced by nurse practitioners and physician assistants, collectively known as “midlevel practitioners,” who can perform many of the same duties and generate much of the same revenue for less than half of the pay.

In a statement to KHN, American Physician Partners said this strategy is a way to ensure all ERs remain fully staffed, calling it a “blended model” that allows doctors, nurse practitioners and physician assistants “to provide care to their fullest potential.”

Critics of this strategy say the quest to save money results in treatment meted out by someone with far less training than a physician, leaving patients vulnerable to misdiagnoses, higher medical bills, and inadequate care. And these fears are bolstered by evidence that suggests dropping doctors from ERs may not be good for patients.

Not everyone sees the trend of private equity in ER staffing in a negative light. Jennifer Orozco, president of the American Academy of Physician Associates, which represents physician assistants, said even if the change – to use more nonphysician providers – is driven by the staffing firms’ desire to make more money, patients are still well served by a team approach that includes nurse practitioners and physician assistants.

In December 2019, Jazmine Quintero applied for employment with Dolgen California, LLC (Dollar General), a wholly owned subsidiary of Dollar General Corporation. She was employed by Dollar General from December 14, 2019, until January 4, 2021, when she resigned.

As part of the application and hiring process, Quintero accessed Dollar General’s web-based Express Hiring system, and electronically signed Dollar General’s arbitration agreement. In addition to other provisions, the agreement provided “Class and Collective Action Waiver: You and Dollar General may not assert any class action, collective action, or representative action claims in any arbitration pursuant to this Agreement or in any other forum.”

Quintero sued her former employer, Dollar General, to recover civil penalties under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) for various Labor Code violations suffered by her or by other employees. Dollar General moved to compel arbitration, which the superior court denied.

Dollar General appealed. The order denying Dollar General’s motion to compel arbitration was reversed in part and affirmed in part in the unpublished case of Quintero v. Dolgen California, LLC – F083769 (February 2023).

An issue in this appeal is whether plaintiff’s PAGA claims seeking civil penalties for Labor Code violations suffered by employees other than plaintiff may be pursued by plaintiff in court. The issue is pending before the California Supreme Court. (Adolph v. Uber Technologies, Inc. (2022) (Aug. 1, 2022, S274671) [2022 Cal. Lexis 5021].)

The Court of Appeal has already decided that and other issues involving Dollar General’s arbitration agreement in Galarsa v. Dolgen California, LLC, -F082404 (Feb. 2, 2023 ), which it did not publish “because it soon will be superseded by the decision in Adolph.”

It also said that in Silva v. Dolgen California, LLC (Oct. 21, 2022, E078185) review granted Jan. 25, 2023, S277538 – another case involving Dollar General’s arbitration agreement – “our Supreme Court granted review and deferred briefing pending a decision in Adolph, which suggests the court will do the same in Galarsa and this case.”

Thus a disposition of this case by a memorandum opinion in accordance with the California Standards of Judicial Administration, Standard 8.1 was found to be appropriate.

Conclusion One: Viking River and the FAA (9 U.S.C. § 1 et seq.) do not invalidate the rule of California law that a provision in an arbitration agreement purporting to waive an employee’s right to pursue representative actions is not enforceable as to representative claims pursued under PAGA. (See Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360 [“an arbitration agreement requiring an employee as a condition of employment to give up the right to bring representative PAGA actions in any forum is contrary to public policy”], abrogated on another ground by Viking River, supra, 142 S.Ct. 1906.)

Conclusion Two: The severability clause in the arbitration agreement allows the unenforceable waiver provision to be stricken from the agreement. (Viking River, supra, 142 S.Ct. at p. 1925.)

Conclusion Three: The provisions of the arbitration agreement remaining after the invalid waiver of representative claims is stricken cover the PAGA claims that seek to recover civil penalties for Labor Code violations suffered by plaintiff.

Conclusion Four: Plaintiff’s PAGA claims that seek to recover civil penalties for Labor Code violations suffered by employees other than plaintiff may be pursued by plaintiff in court.

Based on Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. ___ [142 S.Ct. 1906] (Viking River) and the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.), the Court of Appeal concluded the parties’ agreement requires arbitration of plaintiff’s PAGA claims that seek to recover civil penalties for Labor Code violations suffered by plaintiff.

On an issue of California law currently pending before the California Supreme Court, it concluded plaintiff’s PAGA claims that seek to recover civil penalties for Labor Code violations suffered by employees other than plaintiff may be pursued by plaintiff in the superior court.