Author: WorkCompAcademy

In a case that could make the federal government reconsider how it classifies marijuana, a lawyer urged a Ninth Circuit panel Thursday to make the U.S. Drug Enforcement Administration reassess its 49-year-old position that cannabis has no accepted medical use.  The Ninth Circuit includes California, thus this is a case of significance for the issue in workers’ compensation claims for our state.

“It’s a relic of a bygone era,” attorney Shane Pennington told a three-judge Ninth Circuit panel.

According to the report in Courthouse News, Pennington represents Dr. Suzanne Sisley, an Arizona-based medical marijuana researcher, and three veterans who claim they suffer ongoing harm from the federal government’s refusal to reclassify cannabis as a drug with medicinal benefits. Their Ninth Circuit petition highlights research Sisley has conducted using marijuana to treat veterans who suffer from post-traumatic stress disorder.

Despite the fact that medical marijuana is legal in 36 states, the DEA has classified cannabis as a Schedule I drug – the most restrictive category – since 1972. Congress empowered the DEA to decide how drugs should be classified in the Controlled Substances Act of 1970. That was around the same time former President Richard Nixon declared a “war on drugs.”

The petitioners argue a five-factor test the DEA established in 1992 to determine if a drug has any medical benefit is arbitrary, leads to absurd results and contradicts the will of Congress.

But most of the Ninth Circuit hearing focused not on the wisdom of the DEA’s decision or its criteria for categorizing drugs. Rather, it focused on whether the petitioners have standing to bring their challenge in federal court.

That’s because Sisley and the veterans are challenging the denial of a petition they never filed. The one-page, handwritten petition asking the DEA to reclassify marijuana was filed by Stephen Zyszkiewicz and Jeramy Bowers in January 2020. The DEA denied the petition four months later. Zyszkiewicz and Bowers have two separate lawsuits pending over the denial in the District of Columbia.

“This is a really odd case,” Circuit Judge Willaim Fletcher, a Bill Clinton appointee, told lawyers challenging the DEA’s decision. “You appealed the denial of somebody else’s petition. I’ve never seen a case like this.”

But it’s not unprecedented, according to Matthew Zorn, another lawyer representing Sisley and the veterans.

To support his position, Zorn cited the seminal 2007 Supreme Court case, Massachusetts v. EPA, which forced the federal agency to start regulating greenhouse gas emissions to combat climate change. In that case, Massachusetts was challenging the denial of a petition filed by someone else.

“None of the judges at the D.C. Circuit or on the Supreme Court thought anything about it, that Massachusetts was filing a petition for review on another party’s petition,” Zorn said.

Drawing a distinction, Justice Department lawyer Daniel Aguilar told the panel that Massachusetts had standing in that case only because the Supreme Court found it deserved “special solicitude” as a “sovereign state.”

Responding to a question posed by Circuit Judge Daniel Collins, a Donald Trump appointee, Aguilar acknowledged the Massachusetts v. EPA court never squarely addressed the question of whether a party can challenge the denial of a petition it did not file. But he insisted that no case law exists to support that notion.

Fletcher indicated that he agrees with that position.

U.S. Circuit Judge Paul Watford, a Barack Obama appointee, suggested that allowing people to challenge decisions on petitions they didn’t file could lead to a flood of litigation. Potentially tens of millions of people allegedly harmed by the DEA’s decision could file their own challenges to the petition denial in separate circuit courts across the country, Watford said.

After 33 minutes of debate, the panel took the arguments under submission.

The Summer 2021 edition of Healthesystems.com RxInformer covers diverse topics such as the future of telemedicine and practical tips to make it effective in workers’ compensation.

Telemedicine use has increased in response to the COVID-19 pandemic and is gaining acceptance in workers’ comp. While some obstacles remain, telemedicine has the potential to expand care delivery options and speed recovery times.

According to a recent study by McKinsey, consumer interest in telemedicine rose from 11% to 76% during the pandemic, 57% of healthcare providers said they viewed telemedicine more favorably, and 64% of providers are comfortable using telemedicine. In the course of just a few months, telemedicine physician visits rose 50 – 175x, depending on geography and type of practice.

In workers’ comp, telemedicine also gained wider acceptance during the pandemic as many states relaxed restrictions regarding its use for injured worker patients. The types of changes made by the states (and CMS, which guides rules for some states) vary and include: allowing additional services to be delivered via tele technologies; relaxing provider licensing requirements; amending reimbursement rules (often reimbursing at the higher office visit rates to encourage telemedicine use); and allowing different modes of technology, such as audio-only calls.

Many of the legal and regulatory changes regarding telemedicine are temporary, and it remains to be seen which will become permanent and where. Workers’ comp stakeholders had hopes of cost reduction through telemedicine, both indirectly by speeding recovery times with better access to care, and directly through lower provider fees for virtual visits. To encourage the use of telemedicine during the pandemic, many states have allowed in-office reimbursement rates for virtual visits, which eliminates the direct savings incentive and makes the reimbursement question an important one going forward.

Exactly which medical services can be effectively delivered through telemedicine is also yet to be determined. Currently, fewer than 100 medical services are approved for telemedicine by CMS, which is a small fraction of the 8,000+ services covered by Medicare and Medicaid. The number of medical services we commonly see in workers’ comp are much fewer and, while some services will always require that the provider and patient be physically together, a significant portion of injured worker care could potentially be delivered virtually.

Telemedicine is not appropriate for all medical services. Serious injuries and illness demand in-person attention, and most diagnostic tests and all surgeries require physical contact with the patient. In addition to these obvious exceptions, some patients may feel that they are not getting proper care with a telemedicine visit and prefer to see their healthcare provider in person. There are also important privacy concerns and fear of fraud in both general healthcare and workers’ comp.

Merck announced it has entered into a procurement agreement with the United States government for molnupiravir (MK-4482). Molnupiravir is currently being evaluated in a Phase 3 clinical trial, the MOVe-OUT study, for the treatment of non-hospitalized patients with laboratory-confirmed COVID-19 and at least one risk factor associated with poor disease outcomes. Merck is developing molnupiravir in collaboration with Ridgeback Biotherapeutics.

“Merck is pleased to collaborate with the U.S. government on this new agreement that will provide Americans with COVID-19 access to molnupiravir – an investigational oral therapy being studied for outpatient use early in the course of disease – if it is authorized or approved,’ said Rob Davis, president, Merck. ‘In addition to this agreement with the U.S. government, we are actively engaged in numerous efforts to make molnupiravir available globally to fulfill Merck’s commitment to widespread access.’

Through the agreement, if molnupiravir receives Emergency Use Authorization (EUA) or approval by the U.S. Food and Drug Administration (FDA), Merck will receive approximately $1.2 billion to supply approximately 1.7 million courses of molnupiravir to the United States government. Merck has been investing at risk to support development and scale-up production of molnupiravir and expects to have more than 10 million courses of therapy available by the end of 2021.

Merck also plans to submit applications for emergency use or approval to regulatory bodies outside of the U.S. and is currently in discussions with other countries interested in advance purchase agreements for molnupiravir. Merck is committed to providing timely access to molnupiravir globally and intends to implement a tiered pricing approach based on World Bank data that recognizes countries’ relative ability to finance their public health response to the pandemic.

As part of its access strategy, Merck has also entered into non-exclusive voluntary licensing agreements for molnupiravir with established generic manufacturers to accelerate availability of molnupiravir in 104 low- and middle-income countries following approvals or emergency authorization by local regulatory agencies.

In addition to developing molnupiravir, Merck is contributing to the pandemic response by collaborating with Johnson & Johnson to support the manufacture of its COVID-19 vaccine.

This procurement of molnupiravir will be supported in whole or in part with federal funds from the Department of Health and Human Services; Office of the Assistant Secretary for Preparedness and Response; Biomedical Advanced Research and Development Authority, in collaboration with the DOD Joint Program Executive Office for Chemical, Biological, Radiological and Nuclear Defense.

On February 2, 2021, the Sacramento Police Department North Gang Enforcement Team conducted a traffic stop on 24-year-old Adrian Sykes and found him to be in possession of a fully automatic Glock handgun.

Officers conducted a probation search of his residence and seized drugs, body armor and five additional firearms. Those firearms included a loaded Masterpiece Arms Mac-9 with no serial number, an Anderson Manufacturing AR-15, and an unregistered loaded ABC Rifle AR-Pistol.

Officers also found six Employment Development Department (EDD) debit cards. At that time, Sykes was charged with six counts of being a felon in possession of a firearm, one count of possessing drugs with a firearm, and one count of being a felon in possession of ammunition. Sykes posted bail on these offenses and was released from custody.

The Sacramento County District Attorney’s Office, Sacramento Police Department, and EDD conducted a joint investigation into the six EDD cards that were located.

They found that Sykes and his girlfriend, 26-year-old Brittney Murchison, had filed multiple fraudulent EDD claims. In total, 35 different fraudulent claims were filed using the personal identifying information of victims from across the country and over $600,000 was illegally obtained.

The Sacramento Police Department North Gang Enforcement Team arrested Brittney Murchison on May 27, 2021 for committing EDD fraud. Murchison was charged with 16 counts of EDD fraud and one count of identity theft.

Sykes was located and arrested in Las Vegas, Nevada on June 7, 2021 by agents of the Las Vegas Metro Police Department and agents from the Federal Bureau of Alcohol Tobacco and Firearms. Sykes is currently in custody in Las Vegas pending extradition to Sacramento, California where he will face an additional 35 counts of EDD fraud and one count of identity theft.

According to District Attorney Anne Marie Schubert, “Law enforcement across the state has witnessed staggering EDD fraud committed by criminals and their accomplices. At the same time, we have witnessed an alarming increase of illegal firearms in our communities. This dangerous combination undoubtedly has fueled a dramatic increase in violent crime throughout the state. Sacramento’s law enforcement agencies will continue to partner together to investigate EDD fraud and the additional havoc it brings to our community.”

In December 2015, Carolyn Mattson incurred a work-related injury that left her unable to perform the normal duties of her regular employment.

During her period of recovery, she was assigned by her employer to work as a volunteer at a food bank warehouse operated by Feeding America Riverside San Bernardino Counties, Inc. as part of a transitional work program. While there, Mattson incurred a second injury when she tripped over a wooden pallet on the floor of Feeding America’s warehouse.

Mattson filed a complaint against Feeding America that sought compensation for her injury based upon the theories of negligence and premises liability.

Among other things, defendant alleged as an affirmative defense that prior to participating in any activities with defendant, plaintiff had executed a written agreement entitled, “Waiver and Release of Liability,” which voluntarily released defendant from liability for any future personal injuries arising from defendant’s negligence.

The trial court granted summary judgment in favor of Feeding America based upon the affirmative defense of waiver due to a release executed by plaintiff prior to beginning her work, but denied summary judgment with respect to the workers’compensation exclusivity defense. The court of appeal affirmed in the unpublished case of Mattson v. Feeding America Riverside San Bernardino Counties.

The court of appeal deem the separate defense of workers’compensation exclusivity waived on appeal, and summarized only the evidence and law pertaining to the issue of waiver.

An exculpatory contract releasing a party from liability for future ordinary negligence is valid unless it is prohibited by statute or impairs the public interest. However, a release of liability for future ordinary negligence may be invalidated when the court determines that a particular release concerns a service that transcends a purely private agreement and affects the public interest. Additionally, a release of liability for future gross negligence . . . generally is unenforceable as a matter of public policy. There was no allegation in the complaint of gross negligence, thus the issue on appeal was essentially “public interest.”

In Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92, the California Supreme Court set forth six factors used to determine if a contract affects the public interest.

None of the public interest factors are present in this case, the trial court did not err when it declined to hold the release per se unenforceable as a matter of public policy.