Author: WorkCompAcademy

The Division of Workers’ Compensation has posted an order adjusting the Pathology and Clinical Laboratory section of the Official Medical Fee Schedule (OMFS) to conform to relevant 2021 changes in the Medicare payment system as required by Labor Code section 5307.1.

The order is the third Administrative Director order for the January 2021 annual update to the Pathology and Clinical Laboratory Fee Schedule.

The Centers for Medicare and Medicaid Services issued a revised 2021 Clinical Laboratory Fee Schedule file dated January 25, 2021. The revised file supersedes the previous file.

In addition, the order adopts continued use of the prices of specified COVID-19 related testing codes that do not have national prices but are priced by the California Medicare Administrative Contractor.

The Administrative Director update order dated January 26, 2021 adopting the OMFS adjustment is effective for services rendered on or after January 1, 2021, and can be found on the website of the Division of Workers’ Compensation on the Pathology and Clinical Laboratory webpage.

In a civil complaint filed in the Eastern District of California, the United States alleges that Lawrence Howen and the pharmacy he owns, Nor-Cal Pharmacies Inc. doing business as Lockeford Drug, which operates in Lockford California, unlawfully dispensed controlled substances from 2016 through 2019, in violation of the Controlled Substances Act.

The complaint alleges that Howen failed to meet his obligations as the pharmacist of Lockeford Drug in dispensing dangerous opioids and other drugs. According to the complaint,

Howen knowingly filled over 700 controlled substance prescriptions that were not issued for a legitimate medical purpose, and he filled prescriptions outside the ordinary course of pharmacy practice.

This unlawful conduct resulted in the improper dispensing of over a hundred thousand of doses of controlled substances, primarily prescription opioids.

Civil penalties and injunctive relief are sought to prevent Howen from committing further violations.

“As a pharmacist who filled prescriptions for dangerous controlled substances, Howen had an obligation to fill only those prescriptions that he ensured were legitimate,” said U.S. Attorney Scott.

“Too many lives have been lost during the opioid crisis because those entrusted with responsibility turned a blind eye. This filing represents an important step in our efforts to hold pharmacists and others in the chain of opioid distribution accountable for misconduct.”

“Pharmacists are often the last line of defense to ensure controlled substances are dispensed lawfully and do not fall into the wrong hands. DEA will continue to hold those accountable who choose to ignore red flags and put the public at risk,” stated DEA Special Agent in Charge Daniel C. Comeaux.

This case is the product of an investigation by the Drug Enforcement Administration’s Sacramento Tactical Diversion Squad. Assistant U.S. Attorney Steven Tennyson is prosecuting the case.

Marcelo Develasco, Sr., a construction worker, was killed when a concrete column formwork toppled over at a construction worksite. The worker’s surviving family members brought this wrongful death action against general contractor Swinerton Builders and formwork supplier Atlas Construction Supply.

Atlas cross-complained against Swinerton for equitable indemnity, contribution, and declaratory relief.

Swinerton moved for summary judgment as to plaintiffs’ complaint on grounds that the common law Privette doctrine precluded Swinerton from being held liable to plaintiffs. Under the Privette doctrine, the hirer of a contractor generally may not be held liable in tort when the contractor is hired to do inherently dangerous work and an employee of the contractor suffers work-related injuries due to the contractor’s negligence.

The trial court entered summary judgment in favor of Swinerton as to plaintiffs’ wrongful death complaint.

Thereafter, Swinerton – in lieu of seeking entry of judgment on the summary judgment order – settled with plaintiffs. Under the settlement, plaintiffs agreed to dismiss their case against Swinerton and Swinerton waived its costs.

Swinerton then requested, and the trial court granted, a good faith settlement determination under Code of Civil Procedure section 877.6.

Apparently under the shared belief that the good faith settlement determination barred Atlas’s cross-complaint against Swinerton, Atlas and Swinerton stipulated to the dismissal of Atlas’s cross-complaint against Swinerton.

Atlas appealed the summary judgment order in favor of Swinerton, the good faith settlement determination, and the dismissal of Atlas’s cross-complaint.

The Court of Appeal dismissed the appeal to the extent it concerns the summary judgment order. In all other respects, the challenged orders were affirmed in the published case of Atlas Construction Supply v. Swinerton Builders.

Atlas claimed that the trial court erroneously ruled that Atlas lacked standing to oppose Swinerton’s motion for summary judgment and, on that basis, the court did not consider a meritorious opposition brief filed by Atlas. Atlas argues that if the court had considered the opposition brief, it is reasonably likely the court would have denied Swinerton’s motion for summary judgment, plaintiffs and Swinerton never would have settled plaintiffs’ wrongful death complaint, the court never would have made the good faith settlement determination, and Swinerton and Atlas never would have stipulated to the dismissal of Atlas’s cross-complaint.

The Court of Appeal concluded that Atlas was not aggrieved by the trial court’s exoneration of Swinerton in the wrongful death action. Therefore, Atlas lacks standing to appeal the summary judgment order in favor of Swinerton.

As for the good faith settlement determination and the dismissal of Atlas’s cross-complaint, it concluded Atlas waived its challenge to those orders by failing to make substantive legal arguments specific to those orders. Therefore, it dismissed the appeal insofar as it pertains to the summary judgment order and affirmed the remaining challenged orders.

The emergence of the COVID-19 worldwide pandemic in December of 2019 and efforts by all levels of government to control the spread of the disease through lock-downs and travel restrictions, has reduced business activity in many industries.

Data released by the Department of Commerce’s Bureau of Economic Analysis (BEA) in late July of 2020 indicated that the country’s GDP decreased by an annual rate of 32.9%. The BEA attributed the decline to “state and local government responses to control the spread of the epidemic”

Consequently, the frequency of musculoskeletal work-related injuries especially in the entertainment, travel and hospitality industries has decreased, as indicated in the California Workers’ Compensation Institute’s interactive app.

As the frequency of the traditional injuries associated with work declined, the risk of exposure to SARS-CoV-2 the virus causing Covid-19, increased significantly for various occupational groups. Many jobs that may typically not be considered high-risk, became high-risk for workers exposed to and infected by SARS-CoV-2.

Recently, a new study published in the Journal of Occupational and Environmental Medicine, sought to determine the industries with the highest proportion of accepted COVID-19 related workers’ compensation claims.

The purpose of this investigation is to quantify the differences in the proportion of COVID- 19 related and non-COVID-19 related injuries and illnesses reported through the workers’ compensation system by industrial classification.

The study included 21,336 WC claims (1,898 COVID-19 and 19,438 other claims) that were filed between Jan 1, 2020 and August 31, 2020 from 11 states in the Midwest U.S.

The overwhelming proportion of all COVID-19 related WC claims submitted and accepted were from healthcare workers (83.77%) followed by individuals employed in retail trades (2.42%) and real estate and leasing (2.37%).

Within healthcare employment, WC claims submitted by workers in medical laboratories had the highest risk.

Conversely, in the study population, employment outside healthcare did not appear to consistently elevate the risk of infection with SARS CoV-2 and filing a claim for workers’ compensation to pay for the medical care and lost time associated with this condition.

The statistics, released on Wednesday by the county’s Department of Health Services, suggest a spread much wider than even the county’s own confirmed toll.

The summary of the statistics reported by the Los Angeles Daily News says that as of Thursday, the county’s total number of officially confirmed positive cases throughout the year was 975,299, with a seven-day average positivity rate of 18.2% – nearly 1 in every 5.

But officials continue to believe that in a region of 10 million people, the virus likely infected many more people who simply have not been tested or exhibited symptoms. Their scientific projections arrived at a one-of-three ratio, or about 3.2 million infections, officials said.

Officials believe that for every reported case, between three and four actual infections have occurred, officials said.  And the results, if traditional patterns of behavior during the pandemic hold up, could spur crisis-level demand at hospitals, if the expected holiday surge takes hold.

But even if there wasn’t more transmission over the holidays, county researchers estimate that 1 in every 115 county residents is infectious to others – a higher rate than a week ago, when 1 in 125 residents were infectious.

The estimated undercount is a function of various patterns of behavior, said Dr. Roger Lewis, director of COVID-19 demand modeling for L.A. County Department of Health Services.

“There’s a period when you may be infected without any symptoms, and some people never ever have symptoms and have no way of ever knowing they got sick,” Lewis said – so they don’t get tested.

Then there are people who have mild symptoms. Maybe a slight cough or a cold. They often feel there’s no reason to be tested. And there’s another group who know they are positive – perhaps they live in a household where another is infected, but they don’t go out or present themselves for care because they don’t want to infect others.

“We’re quite confident that it’s in that range,” Lewis said. “If the truth turns out to be 1 in 4, that’ not inconceivable to me. One in 2 seems less likely. I’m quite confident we are in the right range.”

What has complicated considerations for public health researchers and the healthcare providers is the devious nature of the disease itself.  “It’s a disease that can affect two people who look the same – but one will get over in a week to 10 days and one will end up on on a ventilator or die,” he said.

Dr. Thomas Yadegar, medical director of the Intensive Care Unit at Providence Cedars-Sinai Tarzana Medical Center, knows that complex nature well. He said the 3-to-1 ratio seemed a bit high, “but it wouldn’t surprise me,” if it was accurate, he said.

“But even if the number was that high, that’s still nowhere near where it needs to be for us to have herd immunity,” said Yadegar, who for months has been sounding an alarm about the need to intervene early to prevent out-of-control and inflammatory immune responses called cytokine storms. “I still fear the next few months we are going to continue to be in crisis mode.”

Lewis said a new batch of projections will be out next week, and could be the biggest indicator of whether an expected holiday wave will emerge in the coming weeks.