Author: WorkCompAcademy

Massachusetts Attorney General Maura Healey announced that retail pharmacy provider Walmart, Inc. has agreed to pay $500,000 after allegedly failing to follow prescription pricing procedures that are in place to keep costs down and prevent overcharges in the workers’ compensation insurance system.

This case is part of an ongoing review by the Attorney General’s Office into prescription pricing procedures in the workers’ compensation system. AG Healey has now reached settlements with Walmart, Express Scripts, Optum Rx, Walgreens, Stop & Shop, and United Pharmacy for workers’ compensation drug pricing violations totaling over $16 million.

The pricing procedures, required by Massachusetts regulations, ensure that prescription costs will be reviewed against certain regulatory benchmarks. According to the assurance of discontinuance, filed this week in Suffolk Superior Court, Walmart allegedly failed to follow those regulations when applying prices for various injured worker prescriptions from 2016 to the present, at Walmart pharmacy locations in Massachusetts.

Under Massachusetts’ Workers’ Compensation system, when employees are hurt on the job, they are entitled to lost wages, compensation for injuries, and payments for certain injury-related expenses. The system sets limits for the cost of prescriptions for injured workers and requires companies to validate prices against certain regulatory benchmarks before processing their charges, such as the Federal Upper Limit for Medicare and the Massachusetts Maximum Allowable Cost.

On November 7 the Attorney General announced that Pharmacy Benefits Manager, Express Scripts, Inc., has agreed to pay $3.2 million after allegedly failing to follow prescription pricing procedures. The terms of the AG’s settlement require Express Scripts to implement procedures to prevent overcharges in the workers’ compensation insurance system. The settlement also ensures that Express Scripts will cooperate with the AG’s Office’s monitoring of the company’s future regulatory compliance.  

Last February the AG announced that Pharmacy benefits manager, Optum Rx, Inc., has agreed to pay $5.8 million after allegedly failing to follow workers’ compensation prescription pricing procedures. The settlement, filed in Suffolk Superior Court, resolves allegations that Optum Rx, in some circumstances, failed to apply various regulatory benchmarks – like the Federal Upper Limit for Medicare and the Massachusetts Maximum Allowable Cost – to its pricing determinations for certain workers’ compensation insurance prescription drug charges. These failures, according to the settlement, allegedly occurred on various injured worker prescriptions filled in Springfield, New Bedford, Boston and Worcester at Walgreens, CVS, and RiteAid locations.

In February 2019 the AG announced that Walgreens has entered into two separate settlement agreements to resolve allegations that it overcharged MassHealth for prescriptions. These settlements both arise from qui tam (whistleblower) actions originally filed in the United States District Court for the Southern District of New York under the federal False Claims Act. Walgreens is a national pharmacy chain with over 260 locations in Massachusetts. .

These cases were handled by staff from Attorney General Healey’s Insurance and Financial Services Division, including Glenn Kaplan, Dr. Burt Feinberg, and Gia Kim.

The California Insurance Commissioner announced that Essilor Laboratories of America, Inc. has agreed to a $23.8 million settlement in a lawsuit which alleged the company violated the Insurance Frauds Prevention Act. The suit alleged Essilor provided kickbacks and other unlawful incentives to eye care providers that ultimately hurt consumers by unfairly driving them toward more expensive services.

Essilor manufactures, markets, and distributes optical lenses and equipment used to produce optical lenses throughout California and the nation.

This settlement brings to a close a 2016 whistleblower lawsuit brought against Essilor. After investigating the allegations, the Commissioner filed a complaint in intervention in 2021.

The lawsuit alleged that Essilor provided unlawful kickbacks to eye care providers, with an up-front payment of tens of thousands of dollars, or sometimes hundreds of thousands of dollars, in exchange for these providers’ promises to send business to Essilor for a period of anywhere between three to five years. The providers were free to use the up-front payment from Essilor in any manner that they chose so long as they hit the volume requirements pursuant to the agreement.

Additionally, the lawsuit alleged Essilor further provided kickbacks to California eye care providers through a program called “PracticeBuilder” where providers were given cash payments for using Essilor lenses and laboratory services. The cash payments through the PracticeBuilder program were done to reward the eye care providers who prescribed and dispensed Essilor’s more expensive lenses and coatings and to use its laboratory services.

Unlawful incentives, like those alleged in the lawsuit, are prohibited under the Insurance Frauds Prevention Act as these illegal acts can, and do, influence medical decision making. California laws are in place to protect patients and encourage medical decision makers to act solely in the best interest of their patient.

The lawsuit further alleges Essilor knowingly submitted false claims to California private payors, including insurance companies, health care savings plans, and vision benefit organizations.

The resolution is the result of a collaborative prosecution between the Commissioner and the whistleblower’s counsel, Baron & Budd, P.C., The Weiser Law Firm, and Keller Grover, LLP.

“This settlement is an important victory for consumers and patients who were the targets of corporate greed,” said the Insurance Commissioner. “Health insurance fraud causes billions of dollars of premium losses annually, resulting in increased cost to Californians. This settlement sends a strong signal that fraudulent practices that hurt California consumers will not be tolerated and will be prosecuted to the full extent of the law. It also will restore key protections for eyecare patients so they receive care and recommendations that are in their best interest.”

Ramiro Rodriguez claimed injury to the neck, arms, back, shoulders, nervous system, depression and anxiety through February 20, 2003 while employed as a forklift operator by Las Vegas LA Express. The employer denied the claim in its entirety.

Julie Goalwin, Ph.D. evaluated applicant as the psychiatric qualified medical evaluator (QME) on June 21, 2003 and served her report on the parties on July 14, 2003. Dr. Goalwin sold the receivables for her evaluation and report of applicant to Angoal Medical Collections on July 1, 2003.

Janine Angelotti, D.C. evaluated applicant as the applicant’s chiropractic QME on June 25, 2003. Dr. Angelotti also filed a lien claim in the amount of $2,845 for her evaluation and report on July 21, 2003.

Applicant’s claim was dismissed for lack of prosecution on February 3, 2010.

The matter proceeded to trial on December 19, 2019 regarding Angoal Medical Collections’ lien for Drs. Goalwin and Angelotti. Several issues were identified as in dispute including laches. The WCJ issued the F&O in which he found that the lien claim was barred by laches. All other issues were found to be moot and were not addressed in the F&O.

The WCAB panel granted the lien claimants petition for reconsideration, rescinded the F&O and remanded the case for further proceedings in the case of Ramiro Rodriguez v Las Vegas LA Express – ADJ1424195 (November 2022).

In common law legal systems, laches is a lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, particularly in regard to equity. In this case the lien claimant contends on reconsideration that the WCJ erroneously found its lien was barred by laches although defendant did not prove prejudice from the delay in pursuing the lien.

“The equitable doctrine of laches applies to proceedings before the Appeals Board. (See Truck Ins. Exchange v. Workers’ Comp. Appeals Bd. (Kwok) (2016) 2 Cal.App.5th 394, 401-402 [81 Cal.Comp.Cases 685] [“The appeals board has broad equitable powers with respect to matters within its jurisdiction. . . . Thus, equitable doctrines such as laches are applicable in workers’ compensation litigation.”].) The Appeals Board may apply the doctrine of laches to lien claims. (Kaiser Foundation Hospitals v. Workers’ Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57, 68, fn. 11 [50 Cal.Comp.Cases 411] [“a lien claim may be barred by laches if there is unjustifiable delay”].”

However “the affirmative defense of laches requires unreasonable delay in bringing suit ‘plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ Prejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his burdens of proof and the production of evidence on the issue. Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances…”

“It is acknowledged that there was a substantial delay between the lien claim’s filing and lien claimant’s pursuit of reimbursement. The WCJ in his Opinion on Decision and Report indicates that prejudice to defendant may be presumed by this delay. However, defendant must show that it was actually prejudiced by the delay.”

“In this matter, defendant only offered two exhibits at trial to dispute the lien claim: an EAMS lien printout for the case and Elaine Taite’s deposition transcript. No witnesses were offered by defendant. The WCJ presumed that defendant’s file has been destroyed, but there is no evidence in the record to support this presumption. Moreover, defendant has not demonstrated how it was prejudiced by the delay. Consequently, the evidence does not support a finding that the lien is barred by laches.“

The case was returned to the trial level for further proceedings.

Currently, there are no published studies that compare non-pharmacological, pharmacological and invasive treatments for chronic low back pain in adults and provide summary statistics for benefits and harms.

A new systemic multi-center and multi-continent review of both randomized controlled studies and trial registries found that surgeons and the industry are still on the journey to successfully treating chronic non-specific low back pain without radiculopathy.

The study, “Benefits and Harms of Treatments for Chronic Non-Specific Low Back Pain Without Radiculopathy: Systematic Review and Meta-analysis,” was published online on November 15, 2022 in The Spine Journal.

The systematic review and meta-analysis compare the benefits (and harms) of treatments for the management of chronic low back pain without radiculopathy using the Benefit-Harm Scale: level 1 to 7. The team collected data from randomized controlled trials, including trial registries and from electronic databases up until May 23, 2022.

The outcome measures included comparison of pain at immediate-term (2 weeks or less) and short-term (greater than 2 weeks to less than or equal to 12 weeks) and serious adverse events using the Benefit-Harm Scale (level 1 to 7).

The interventions studied include non-pharmacological (acupuncture, spinal manipulation only), pharmacological, and invasive treatments compared to placebo.

Overall, 17,326 records were found. Only three studies provided data on the benefits of interventions and 30 provided data on harms. Studies included interventions of:

– – Acupuncture,
– – Manipulation,
– – Pharmacological therapies, including NSAIDS and opioid analgesics, surgery and
– – Epidural corticosteroid injections.

The researchers found:

– – Acupuncture (standardized mean difference (SMD) -0.51, 95%CI -0.88 to -0.14, n = 1 trial, moderate quality of evidence, benefit rating of 3) and
– – Manipulation (SMD -0.39 (96%CI -0.56 to -0.21, n = 2 trials, moderate quality of evidence, benefit rating of 5) effective reduced pain intensity compared to sham
– – Other treatments were scored as uncertain due to not being effective, statistical heterogeneity preventing pooling of effect sizes, or the absence of relevant trials.

The researchers reported that the harms level warnings were at the lowest for:

– – Acupuncture,
– – Spinal manipulation,
– – NSAIDs,
– – Combination ingredient opioids, and steroid injections

Harms warnings were higher for single ingredient opioid analgesics and surgery.

“There is uncertainty about the benefits and harms of all the interventions reviewed due to the lack of trials conducted in patients with chronic non-specific low back pain without radiculopathy. From the limited trials conducted, non-pharmacological interventions of acupuncture and spinal manipulation provide safer benefits than pharmacological or invasive interventions.”

“However, more research is needed. There were high harms ratings for opioid and surgery.”

Patricia Harrison claimed injury to the right shoulder and neck on March 29, 2019 while employed as a child support officer II by Los Angeles County Child Support.

The parties stipulated that she had a prior industrial injury on November 30, 2011, which was resolved in March 2019 by Stipulations with Request for Award. This 2011 injury caused 41% permanent disability, 24% of which was attributed to the cervical spine.

The parties stipulated at trial to the prior award for applicant’s 2011 injury. The issues at trial included permanent disability, apportionment and the applicability of section 4664 for the prior 2011 award. Exhibits admitted at trial included two reports from applicant’s primary treating physician and three reports from Dr. Halbridge, who was the QME in the 2019 case, were offered as joint exhibits. None of the medical reporting from the prior 2011 injury were provided as evidence at trial.

Dr. Halbridge was provided with the reporting of the agreed medical evaluator (AME), Dr. Alexander Angerman, with respect to the 2011 injury. He apportioned 45% of permanent disability with regard to the cervical spine to the prior fall down the stairs at work in 2011. Ten percent (10%) of permanent disability with regard to the cervical spine was apportioned to the natural progression of multilevel cervical spondylosis.

The WCJ found that applicant’s injury to the right shoulder and neck had caused 30% permanent disability, and found that 20% of applicant’s disability for the neck was attributable to other factors. The award was affirmed in the panel decision of Harrison v. Los Angeles County Child Support. ADJ12332626 (November 2022).

On reconsideration the County of Los Angeles contends that the WCJ’s decision failed to properly address apportionment under Labor Code sections 4663 and 4664. Specifically, they contend that there must be apportionment to applicant’s prior disability award for the neck under section 4664. Alternatively, defendant contends that there must be 45% apportionment to the prior injury under section 4663.

The employer holds the burden of proof to show apportionment of permanent disability. To meet this burden, the employer must demonstrate that, based upon reasonable medical probability, there is a legal basis for apportionment. “Apportionment is a factual matter for the appeals board to determine based upon all the evidence.” (Gay v. Workers’ Comp. Appeals Bd. (1979) 96 Cal.App.3d 555, 564 [44 Cal.Comp.Cases 817)

In order to prove apportionment for a prior permanent disability award is warranted under section 4664, the employer must first prove the existence of the prior permanent disability award. Then, having established by this proof that the permanent disability on which that award was based still exists, the employer must prove the extent of the overlap, if any, between the prior disability and the current disability.

The parties stipulated at trial that there was a prior award from March 2019 for applicant’s 2011 injury. This constitutes evidence of the existence of a prior award for the cervical spine.

“Overlap is not proven merely by showing that the second injury was to the same body part because the issue of overlap requires a consideration of the factors of disability or work limitations resulting from the two injuries, not merely the body part injured.”

Defendant contends that although the AME for the 2011 injury rated applicant’s cervical spine impairment using the DRE method and Dr. Halbridge rated the spinal impairment using the ROM method, this is irrelevant per Hom v. City and County of San Francisco (April 15, 2020; ADJ10658104) 2020 Cal. Wrk. Comp. P.D. LEXIS 124

“None of the medical reports from applicant’s 2011 injury were placed in evidence. The evidentiary record in this matter thus does not contain Dr. Angerman’s reporting and we are unable to compare his evaluation of impairment to Dr. Halbridge’s reporting.”

” In Hom, the AME had expressly opined that apportionment per section 4664 can be applied. In this matter, the QME Dr. Halbridge did not provide any discussion regarding how applicant’s prior permanent disability for the cervical spine overlaps with her current permanent disability for this body part. Consequently, we agree with the WCJ that defendant failed to meet its burden of proof to show overlap and apportionment per section 4664 is not warranted.”