Author: WorkCompAcademy

The influenza vaccine is protective against the influenza virus, reducing the number of cases and deaths that occur with this seasonal pathogen. Flu shots are a high priority for older adults and healthcare workers (HCWs) at a greater risk of infection and complications.

Earlier research suggests a link between SARS-CoV-2 infection/adverse COVID-19 outcomes and prior influenza vaccination. There was a need to make sure that this was not because flu shots are more likely to be taken by the health-conscious, who are also more compliant with protective health behaviors against COVID-19. This is called the healthy user effect and is a potential source of bias in such studies.

The current study, which appears on the medRxiv* preprint server, was conducted among health care workers at Hamad Medical Corporation, the principal provider of public healthcare services in Qatar and the nationally designated entity for COVID-19-related healthcare needs.

It included over 30,000 healthcare workers vaccinated against influenza during the period between September 17, 2020, and December 31, 2020, when the annual flu shots are usually given. Significantly, this was before the rollout of COVID-19 vaccines.

The vaccinated participants had a median age of 36 years, while a control group had a slightly lower median age of 35. All participants received the quadrivalent Influvac Tetra vaccine (Abbott). Cases and controls were in a ratio of 1:5.

The results showed that the flu shots reduced the risk of SARS-CoV-2 over the next two weeks by 30%. Conversely, they reduced the risk of severe or fatal COVID-19 by 90%. Of nearly 130 individuals who tested positive for SARS-CoV-2 by PCR after taking the flu shot, one developed severe COVID-19 (requiring hospitalization), and none progressed to critical or fatal disease.

In contrast, among nearly 400 unvaccinated patients who tested positive, there were 17 severe and 2 critical cases, though no deaths occurred.

It must be noted however, that the study included small numbers of severe cases. Nonetheless, the evidence supports the reported effectiveness of the influenza vaccine against both infection with and COVID-19 disease as a result of SARS-CoV-2.

The protection mechanism is as yet unexplained. More importantly, the study is not generalizable because it includes mostly young, healthy HCWs. However, this negates the healthy user bias. Overall, therefore, “The findings support benefits for influenza vaccination that extend beyond protection against influenza infection and severe disease.”

The National Council on Compensation Insurance (NCCI) released its performance metrics for the US workers compensation system for 2021. NCCI’s annual State of the Line presentation provides an exclusive review of trends, cost drivers, and significant developments shaping the workers compensation industry.

Private carrier plus state fund net written premium increased about 1% to $43 billion in 2021 (private carrier premium alone was $38B). Private carriers again posted a profitable Calendar Year 2021 combined ratio of 87. It is the fifth consecutive year with a combined ratio below 90 for the workers compensation insurance market and the eighth consecutive year of underwriting profitability.

“The strength and resilience of the workers compensation system is a point of pride for all stakeholders,” said Bill Donnell, President and CEO of NCCI. “As the workforce and workplaces are changing, the industry must step up again to fulfill its noble responsibility: helping injured workers.”

“Strong employment and significant wage growth are fueling workers compensation payroll increases,” NCCI Chief Actuary Donna Glenn added. “We have a remarkably strong and healthy system right now.”

Additional key insights in NCCI’s State of the Line Report include:

– – The workers compensation line is strong and healthy.
– – WC results continue to reflect a strong financial position.
– – Lost-time claim frequency data suggests the long-term decline has continued, despite a rise in frequency in 2021. Since 2019, frequency declined slightly.
– – The 2021 changes in indemnity and medical claim severity are expected to be flat.
– – The number of COVID-19 claims declined in 2021 relative to the prior year.
– – Workers compensation reserves grew to $16 billion redundant as of year-end 2021.
– – The system saw its eighth consecutive year of underwriting profitability with a calendar year combined ratio of 87, outperforming other property-casualty lines.
– – The 2018 to 2021 loss ratios have been the lowest observed in at least 30 years
– – Net written premiums rose about 1% in 2021.
– – Between 2020 and 2021, countrywide private carrier direct written premium increased 1.9%.
– – State funds saw a larger increase in premium compared with private carriers.
– – Lost-time claim frequency data suggests the long-term decline continues, despite a rise in frequency in 2021. Since 2019, frequency has declined slightly.
– – There is no change expected in medical and indemnity claims severity in 2021.
– – There are potential challenges ahead as medical costs could experience inflationary pressure.
– – Workers compensation reserves are robust. Reserves grew to $16 billion redundant as of year-end 2021.
– -Total property and casualty net written premium for private carriers increased by approximately 9% to more than $700 billion in 2021.

Glenn issued the State of the Line Report at NCCI’s Annual Insights Symposium on May 10 in Orlando, FL.  The State of the Line Report and State of the Line Guide are available online.

Each year the California Chamber of Commerce releases a list of job killer bills to identify legislation that it says will decimate economic and job growth in California. The CalChamber tracks the bills throughout the rest of the legislative session and works to educate legislators about the serious consequences these bills will have on the state.

Following the April 29 deadline for legislation to be referred to fiscal committees, several bills identified by the California Chamber of Commerce as job killers will not be advancing this year. The 2022 list now consists of 12 bills, including two carry-over proposals from 2021. CalChamber monitors changes in legislation and will add bills to the list as appropriate.

The good news is that the proposal for a 32 hour work week in California seems to no longer be a problem.  AB 2932 (Low; D-Campbell) significantly increases labor costs by imposing an overtime pay requirement after 32 hours and other requirements that are impossible to comply with, exposing employers to litigation under the Private Attorneys General Act (PAGA). In Assembly Labor and Employment Committee. Failed deadline to move from policy committee to fiscal committee, April 29, 2022.

One bill remains on the Workers’ Compensation section of the list. SB 213 (Cortese; D-San Jose) significantly increases workers’ compensation costs for public and private hospitals by presuming certain diseases and injuries are caused by the workplace and establishes an extremely concerning precedent for expanding presumptions into the private sector. 2021 carry-over bill.

And there are several employment law related proposals that remain on the Job Killer list.

AB 2095 (Kalra; D-San Jose) places new onerous administrative burdens on employers by requiring annual reporting of wage and hour data and employee benefits on an employer’s entire United States workforce that will unfairly criticize employers for lawful conduct by publishing that data on the Labor and Workforce Development Agency’s website and using such data to rank employers and deny them state opportunities, and will subject employers to frivolous litigation and settlement demands.

AB 2182 (Wicks; D-Oakland) imposes new burdens on employers to accommodate any employee with family responsibilities, which will essentially include a new, uncapped protected leave for employees to request time off and exposes employers to costly litigation under the Fair Employment and Housing Act by asserting that any adverse employment action was in relation to the employee’s family responsibilities, rather than a violation of employment policies.

AB 2188 (Quirk; D-Hayward) risks workplace safety by promoting marijuana use to a protected class under California’s discrimination law, on par with national origin or religion. Also effectively prohibits pre-employment drug testing, harming employers’ ability to keep their workplace safe and drug free. In addition, would prohibit use of traditional marijuana tests, such as urine and hair testing, and compel employers to utilize saliva-based testing.

SB 1044 (Durazo; D-Los Angeles) allows employees to leave work or refuse to show up to work if employee subjectively feels unsafe regardless of existing health and safety standards or whether employer has provided health and safety protections and subjects employers to costly Private Attorneys General Act (PAGA) lawsuits if they dispute the employee’s decision or need to have another employee take over any job duties.

AB 2289/ ACA 8 (Lee; D-San Jose) seeks to impose a massive tax increase upon all forms of personal property or wealth despite California already having the highest income tax in the country. This tax increase will drive high-income earners and job creators out of the State as well as the revenue they contribute to the General Fund.

Michael Ayala sustained an injury in 2002 while employed as a correctional officer by the Department of Corrections & Rehabilitation/Lancaster State Prison as a result of an attack on prison staff by the inmates. The parties entered into Stipulations with Request for Award that the injury caused 85% permanent disability. The Award was approved on July 31, 2012.

Ayala filed a petition alleging that the injury occurred as a result of serious and willful misconduct by defendant per Labor Code section 4553. The WCJ found in a 2018 Finding of Fact that the employer did not engage in serious and willful misconduct.

However reconsideration was granted in April 2020 and the Appeals Board issued a decision finding that he sustained an injury as a result of serious and willful misconduct by defendant. The decision included an award for a 50% increase in compensation.

The case proceeded to trial again on July 29, 2021 to calculate the 50% increase in benefits. One of the issues was to determine if the computation of the S & W award applies to all the benefits Ayala received, including or the Enhanced Industrial Disability Leave. He was paid enhanced IDL at the rate of his full salary for 845 days, valued at $155,000, 50% of which would be $77,500.

WCJ found that the Appeals Board lacks jurisdiction to award industrial disability leave (IDL) benefits, However, reconsideration was again granted, and the WCAB panel issued another new decision finding that Ayala was entitled to a 50% increase in compensation per section 4553 to be calculated based on the enhanced IDL he received, in the WCAB panel decision of Ayala v Department of Corrections ADJ1360597 (April 2022).

The panel stated that “there is no dispute that the Appeals Board does not have jurisdiction to award IDL, enhanced or otherwise.” However “the Appeals Board unquestionably has jurisdiction to issue and calculate applicant’s serious and willful award that he is entitled to under section 4553.”

Government Code section 19871 provides for state employees to receive IDL (full pay less withholding for taxes and certain deductions/contributions) for 52 weeks when they are temporarily disabled due to an industrial injury. Certain employees receive “enhanced” IDL pursuant to Government Code section 19871.2

Section 4553 provides that the “amount of compensation otherwise recoverable shall be increased one-half.” Ayala contends that “compensation otherwise recoverable” includes enhanced IDL. He argues that the language “otherwise recoverable” extends to compensation beyond what is contained in the definition of compensation in Labor Code section 3207.  He further argues that Government Code section 19870 provides that IDL “means temporary disability as defined in” division 4 of the Labor Code, which is why IDL payments have been considered in calculating aggregate disability payments under section 4656 per Brooks v. Workers’ Comp. Appeals Bd. (2008) 161 Cal.App.4th 1522 [73 Cal.Comp.Cases 447].

The WCAB panel essentially agreed with these arguments. And it went on to discuss the purpose of 4553 since the fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.

In Ferguson v. Workers’ Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613, 1621 [60 Cal.Comp.Cases 275], the Court of Appeal held “that an award for increased compensation due to the serious and willful misconduct of an employer under section 4553 must be calculated with reference to ‘every benefit or payment conferred by Division 4 upon an injured employee’ as broadly defined in section 3207.” The Court in Ferguson acknowledged that section 4553 is not quite consistent with the no-fault principle applicable to the workers’ compensation system.  

Applying the interpretation principles, in this case the panel concluded that “the purpose of an award under section 4553 is to more fully compensate the employee for an injury caused by the employer’s serious and willful misconduct. This purpose is best served by interpreting ‘compensation otherwise recoverable’ as including applicant’s enhanced IDL payments, which provides for a greater amount of compensation than calculating the section 4553 award based on his temporary disability rate.”

The United States has intervened in six complaints pending in Northern California federal court, alleging that members of the Kaiser Permanente consortium violated the False Claims Act by submitting inaccurate diagnosis codes for its Medicare Advantage Plan enrollees in order to receive higher reimbursements. The Kaiser Permanente consortium members are headquartered in Oakland, California.

The six lawsuits were filed under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private parties to sue on behalf of the government and to receive a share of any recovery. The Act also permits the government to intervene in such lawsuits, as it has done here.

Ronda Osinek was the first-filed case and was followed by five other cases: Taylor, Arefi, Stein, Bryant, and Bicocca.The cases were consolidated in June 2021.

The Defendants’ filed a motion to dismiss based on the first-to-file bar in the False Claims Act . The Act provides that “When a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.”

The court therefore was required to compare the Osinek Complaint with the complaints in the other cases to determine whether the cases are related, and thus the plaintiff who was the first-to-file only is allowed to proceed. The federal judge in a May 5 46 page ruling, allowed some claims but the majority of the claims were denied.

In the discussion leading up to the ruling, the opinion provides an excellent summary, if not a full treatise, on how sophisticated such efforts at “upcoding” and other Medicare billing strategies have become.

Adjustments are made to the payments to Medicare Advantage Plans based on demographic information and the diagnoses of each plan beneficiary. The adjustments are commonly referred to as “risk scores.” A beneficiary with more severe diagnoses will have a higher risk score, and CMS will make a larger risk-adjusted payment to the MA Plan for that beneficiary.

How can this be the subject of a whistleblower claim? Osinek alleged that starting around 2007, Kaiser Permanente began a “scheme to upcode diagnoses to ensure Medicare payments for reimbursable, high-value conditions.” This was done was by use of data mining for high value cases, and then determining the diagnoses its doctors would need to make to support the Medicare reimbursement.

She then alleges that there is “an escalation process for physicians who do not agree with the data mining prompts”; “[p]hysicians will have to meet one-on-one with Data Quality Trainers if they refused to make diagnoses changes that are presented by data mining”; “physicians have personal report cards based on how they perform in certain areas [including response to refreshing and data mining prompts], which are tied to their compensation”; and there are “mandatory meetings called ‘coding parties,’ where physicians are gathered in a single room with computers and asked to review past progress notes for addenda related to revised medical diagnoses.”

Another strategy was “refreshing” with Osinek alleging that “Kaiser tracks and rewards physicians based on the percentage of chronic conditions they are able to capture and refresh.” If a patient has a chronic condition, then that condition must be rediagnosed each year ” i.e., refreshed. She alleged the doctor would be told to include the chronic condition as a diagnosis for a visit even if that condition was not at issue in the patient visit.
And Kaiser allegedly provided guidance or policies that supported upcoding. For example, “Kaiser told its physicians to diagnose chronic kidney disease instead of the lower value nephritis or nephropathy.”

Kaiser allegedly had its doctors use addenda to retroactively diagnose – e.g., long after a patient visit, for a condition for which the patient was not treated at the time of the face-to-face visit, based on tests run after the face-to-face visit, to change a diagnosis to a higher value and more complicated form of disease, without proper support/documentation, and/or using boilerplate language.

The 46 page Opinion, then compares and contrasts the allegations in the Osinek complaint, with those in the other cases, which then exposes nuances and embellishments. For example, Dr. Taylor in his complaint claims that his differs from the Osinek Complaint because he has made allegations about Kaiser’s Natural Language Processing (“NLP”) software. “All face-to-face visits to a physician or hospital . . . are run through the NLP software to identify new diagnoses that might be appropriate to use for submission of additional risk adjustment claims.” And goes on to argue that “different frauds were implicated in each case.”

The Court concluded that the nature of wrongdoing claimed by Dr. Taylor here involves different “material elements” from Osinek.

“The Taylor case is not dismissed in its entirety but only in part. Taylor differs materially from Osinek in three ways: (1) Taylor points to a nationwide or corporate-wide problem whereas Osinek is local or regional (i.e., California-centric) in nature; (2) Taylor has identified a fraud related to external providers rather than high-value conditions; and (3) Taylor asserts a problem with Kaiser failing to evaluate the True Positives results yielded by the NLP program.”

A similar process was used to evaluate the other plaintiffs, with some being dismissed in their entirety.