Author: WorkCompAcademy

The U.S. Justice Department on Thursday will rescind a marijuana policy begun under Democratic former President Barack Obama that eased enforcement of federal laws as a growing number of states and localities legalized the drug, a source familiar with the matter said.

The Obama-era policy, outlined in 2013 by then-Deputy Attorney General James Cole, recognized marijuana as a “dangerous drug,” but said the department expected states and localities that authorized various uses of the drug to effectively regulate and police it.

Going forward, federal prosecutors around the country will have deference to enforce U.S. laws on marijuana as they see fit in their own districts, added the source, speaking on condition of anonymity.

The upcoming policy change comes just days after California formally launched the world’s largest regulated commercial market for recreational marijuana.

Besides California, other states that permit the regulated sale of marijuana for recreational use include Colorado, Washington, Oregon, Alaska and Nevada. Massachusetts and Maine are on track to follow suit later this year.

The policy being reversed had sought to provide more clarity on how prosecutors would enforce federal laws that ban marijuana in states that have legalized it for medicinal or recreational use. Its rescission could sow confusion and potentially hamper efforts to cultivate local marijuana businesses.

U.S. Attorney General Jeff Sessions has made no secret about his disdain for marijuana. He has said the drug is harmful and should not be legalized. He also described marijuana as a gateway drug for opioid addicts.

A task force created under a February 2017 executive order by Trump and comprised of prosecutors and other law enforcement officials was supposed to study marijuana enforcement, along with many other policy areas, and issue recommendations.

Its recommendations were due in July 2017, but the Justice Department has not made public what the task force determined was appropriate for marijuana.

Sessions and some law enforcement officials in states such as Colorado blame legalization for a number of problems, including drug traffickers who have taken advantage of lax marijuana laws to illegally grow and ship the drug across state lines, where it can sell for much more. The decision was a win for marijuana opponents who had been urging Sessions to take action.

“There is no more safe haven with regard to the federal government and marijuana, but it’s also the beginning of the story and not the end,” said Kevin Sabet, president and CEO of Smart Approaches to Marijuana, who was among several anti-marijuana advocates who met with Sessions last month. “This is a victory. It’s going to dry up a lot of the institutional investment that has gone toward marijuana in the last five years.”

The Division of Workers’ Compensation last month suspended 28 more medical providers from participating in California’s workers’ compensation system, bringing the total number of providers suspended to 159. The providers were suspended for fraud or other criminal actions, or the loss of their license.

Most notable among them was Khristine Eroshevich M.D., a Beverly Hills physician, was convicted in federal court in 2010 of unlawfully prescribing controlled substances following the death of of patient, actress Anna Nicole Smith, by fraud, deceit, misrepresentation, or concealment of a material fact.

Eroshevich wrote numerous unnecessary prescriptions for controlled substances using false names and information for individuals who were not her patients. Eroshevich was also suspended by the California Department of Health Care Services from participating in the Medi-Cal program for an indefinite period of time.

On October 6, 2017 Eroshevich filed a federal lawsuit against officials of the DIR. She alleges that the remaining misdemeanor count “was ordered set aside, a plea of not guilty was entered, and it was also dismissed by the Superior Court.” Thus it could not be used as grounds for her suspension.

Her federal action was dismissed on December 21 based upon the “Younger” abstention doctrine. In Younger v. Harris, [401 U.S. 37 (1971)], the U.S. Supreme Court reaffirmed the longstanding principle that federal courts sitting in equity cannot, absent exceptional circumstances, enjoin pending state criminal proceedings and civil enforcement actions “akin to” criminal proceedings.

Also suspended was Gary Ordog M.D., a Newhall physician and operator of a mobile medical clinic, who was convicted in 2016 of health care fraud for submitting claims to Medicare totaling approximately $6.5 million. Ordog submitted false and fraudulent claims to Medicare for office visits or other outpatient visits that never occurred.

And Owusu Ananeh Firempong M.D., another Beverly Hills physician, who was convicted in 2012 in federal court of health care fraud for submitting false and fraudulent claims to Medicare. Firempong was also convicted in 2011 in federal court of conspiracy to distribute cocaine and conspiracy to launder money. Firempong was sentenced to 57 months in federal prison and ordered to pay nearly $800,000 in restitution. Firempong’s medical license was revoked in 2016.

The list of all of the 28 vendors who have been recently suspended is contained in the latest DWC notice, and on the DWC webpage that lists all suspended providers to date.

The law firm of Floyd, Skeren & Kelly, LLP, headquartered in Westlake Village California, noted for being at the forefront of workers’ compensation defense firms in California for three decades, is undergoing a name change.

With the retirement of senior partner Todd Kelly, the firm has announced that long-time senior partners Amanda Agavni Manukian and John M. Langevin will now share the masthead as the New Year begins.

Established in 1987 by workers’ compensation litigation attorney John B. Floyd, over the years the firm of Floyd, Skeren, Manukian and Langevin has expanded to offices in Westlake Village, Thousand Oaks and Camarillo as well as Pasadena and Riverside, Long Beach, Orange and San Diego, Fresno, Sacramento and Oakland. Their criminal defense division is located in Beverly Hills.

Now a multi-service law firm, Floyd, Skeren, Manukian & Langevin offer a broad range of legal expertise pertaining to workers’ compensation claims, criminal cases, employment and labor law, business law and family law.

Amanda Manukian works in of the firm’s Westlake and Pasadena office and is chairperson of the Special Investigation Unit. She obtained her juris doctorate from Glendale University College of Law. Manukian served as a senior certified law clerk in the Los Angeles County District Attorney’s office from 1998-2002, and was admitted to the State Bar of California in 2002.

From 2002 to 2003 Manukian assisted the Deputy in charge of the Special Investigation Unit of the Los Angeles County District Attorney’s office, in the Writs and Appeals Department.  She then served as fraud liaison for the State Compensation Insurance Fund in Los Angeles before joining Floyd, Skeren & Kelly, LLP, in 2004 as a workers’ compensation litigation attorney.

John M. Langevin anchors the firm’s Bay Area office in Oakland. He earned his juris doctorate from Western State University College of Law in Fullerton. In 1989 Langevin was admitted to both the State Bar of California and the U.S. District Court, Central District of California.

From 1988 to 1989 Langevin served as a certified law clerk in the Orange County Public Defender’s office in Santa Ana, and from 1989 to 1991 practiced personal injury litigation.

At the State Compensation Insurance Fund in Riverside he was staff counsel (1991 to 1998) and senior staff counsel (1998 to 2003). In 2003 Langevin joined Floyd, Skeren & Kelly, LLP, as a workers’ compensation litigation attorney.

Floyd, Skeren, Manukian & Langevin represent clients at all of the major workers’ compensation district offices in Southern, Central and Northern California.

Along with their special investigation and subrogation units, the firm has an appellate unit chaired by retired Judge David W. O’Brien, considered the foremost expert on workers’ compensation in California and author of numerous definitive publications in the field.

Judge O’ Brien’s daughter Bernadette M. O’Brien chairs the firm’s employment law department that provides legal advice designed to assist employers in comprehending the complexities of employment law and many other critical employer-employee issues.

Floyd, Skeren, Manukian and Langevin also offer WorkComp Academy, an online educational resource that provides industry professionals with opportunities to attend the firm’s varied educational presentations. It was created by associate Rene Thomas Folse who is licensed as both a psychologist and an attorney in California and is an experienced workers’ compensation practitioner.

Floyd, Skeren, Manukian and Langevin conduct client training seminars on California workers’ compensation law, led by Judge O’Brien and Rene Thomas Folse.

For more information, please contact the Firm’s Administrator Renee Sherman at (818) 206-9222 ext. 3261.

With the changing landscape of health care, outpatient spine surgery is being more commonly performed to reduce cost and to improve efficiency. Anterior cervical discectomy and fusion (ACDF) is one of the most common spine surgeries performed and demand is expected to increase with an aging population.

But a new study published in The Spine Journal claims that patients who get spinal surgery at outpatient centers may be more likely to have serious complications or require repeat operations than their counterparts who get these procedures in a hospital.

Researchers focused on an operation known as anterior cervical discectomy and fusion (ACDF), which involves removing a damaged disc in the neck to reduce pressure on the spinal cord or nerve root that can cause pain, numbness and weakness. Most of these surgeries are done in hospitals with a one or two night stay, but a growing number of people are going instead to outpatient centers that may have lower costs in part because they don’t keep patients overnight.

The study looked at outcomes for 1,215 patients who had outpatient ACDF and 10,964 people who had these operations in a hospital between 2011 and 2016. All of the patients in the study had insurance through Humana. In both the inpatient and outpatient groups, half of the patients were at least 65 to 69 years old. Overall, there were few complications, researchers report in The Spine Journal.

One year after surgery, 5.5 percent of the people who had outpatient surgery needed repeat operations, as did 4.1 percent in the inpatient group.

After accounting for individual patient characteristics like age, gender and other health problems, the researchers found that people who had outpatient ACDF were 79 percent more likely to require repeat operations within one year than patients who had operations in a hospital. Outpatients were also 25 percent more likely to experience postoperative kidney failure.

“We were surprised that the outpatient cohort had greater rates of postoperative renal failure since these patients are typically younger and healthier to undergo surgery in the outpatient setting,” said senior study author Dr. Don Young Park of the David Geffen School of Medicine at the University of California, Los Angeles.

“Our study is the first to show that outpatient ACDF is associated with some increased risk, even in ideal surgical candidates,” Park said by email reported as reported by Reuters Health.

But the study was not a controlled experiment designed to prove whether or how the location of surgery might influence the outcomes. Another limitation of the study is that it relied on insurance claims data and lacked detailed medical information on individual patients, the authors note. Researchers also didn’t have data on early complications such as emergency room visits or hospitalizations.

Individual patient factors missing from the insurance claims data might explain the slight differences in outcomes between inpatient and outpatient operations, said Dr. Matthew McGirt of Carolina Neurosurgery & Spine Associates in Charlotte, North Carolina, who wasn’t involved in the study.

Still, the findings add to the evidence that these operations can be done safely, but should be considered only after other treatments such as physical therapy, pain medication or steroid injections fail, doctors say.

“Surgery should be reserved for patients with severe pain despite an appropriate course of non-operative treatment or for those with neurologic deficits,” said Dr. Frank Phillips, a researcher at Rush University Medical Center in Chicago who wasn’t involved in the study.

“In appropriately selected patients, the success rate for ACDF procedure in terms of improving symptoms is generally above 90 percent,” Phillips said by email.

Mahmoud Alzayat, on behalf of the People of the State of California, filed a qui tam action against his employer, Sunline Transit Agency, and his supervisor, Gerald Hebb, alleging a violation of the Insurance Frauds Prevention Act (IFPA or the Act). (Ins. Code, § 1871 et seq.)

Sunline is a public entity that provides regional transportation services and oversight of other transportation entities such as taxi companies. Alzayat was employed by Sunline as a stops and zones technician, and in that capacity he maintained bus stop infrastructure. Hebb was Alzayat’s supervisor.

On the day of the injury, Alzayat was working on a bus stop. The only available bags of concrete mix weighed 90 pounds. Alzayat asked Hebb for permission to either break down a 90-pound bag into lighter ones or to have another employee help him. Hebb refused Alzayat’s requests, and the two argued for about two minutes. Hebb ultimately ordered Alzayat to lift the 90-pound bag by himself without breaking it down first. Alzayat complied and, immediately upon lifting the bag, felt intense pain in his lumbar spine, and he partially collapsed. Alzayat dropped the bag and its contents spilled out. When Hebb asked Alzayat why he had dropped the bag, Alzayat complained he had injured his back when lifting the bag.

In the report, Hebb wrote he did not witness Alzayat’s injury. Alzayat alleged Hebb made false statements in the incident report submitted in response to Alzayat’s claim for workers’ compensation, and Hebb repeated those false statements in a deposition taken during the investigation into Alzayat’s claim for compensation.

Hebb testified under oath that he had no conversation with Alzayat about the request to either break down the bag of concrete mix or to obtain help in lifting the bag. Hebb also denied having witnessed Alzayat injure himself when he lifted and then dropped the bag. Hebb’s false statements resulted in Alzayat’s claim being initially denied.

Alzayat filed a lawsuit alleging Hebb’s false statements in relation to Alzayat’s claim for workers’ compensation benefits constituted violations of Penal Code section 550, and formed predicate offenses for liability under the Insurance Frauds Prevention Act (IFPA). Alzayat prayed for a civil penalty against Hebb and Sunline of no less than $5,000 and no more than $10,000, an assessment of no more than three times the amount of his workers’ compensation claim, attorney fees, and costs.

The employer filed motions for judgment on the pleadings contending: (1) this lawsuit is based on allegedly false and fraudulent statements Hebb made in connection with a workers’ compensation proceeding and is, therefore, barred by the litigation privilege under Civil Code section 47, subdivision (b) and (2) Alzayat’s claim is barred by the workers’ compensation exclusivity rule.

The superior court concluded the workers’ compensation exclusivity rule is inapplicable, but ruled the litigation privilege bars Alzayat’s claim. Therefore, the court granted the motions without leave to amend and entered judgment dismissing the lawsuit.

Alzayat appealed from the judgment, contending the litigation privilege only applies to tort claims and not to statutory claims such as an action under the IFPA, and the IFPA is a specific statute that prevails over the general litigation privilege. The employer cross-appealed, arguing that, even if Alzayat’s lawsuit is not barred by the litigation privilege, the superior court erred by not granting judgment on the pleadings on the ground that Alzayat’s claim is barred by the workers’ compensation exclusivity rule.

The Court of Appeal agreed with Alzayat that his lawsuit is not barred by the litigation privilege nor by the workers’ compensation exclusivity rule in the published case of The People ex. rel. Mahmoud Alzayat v Gerald Hebb et. al.

The IFPA was in large measure designed to prevent workers’ compensation insurance fraud, and the Act includes a number of legislative findings and declarations that are relevant here. “Workers’ compensation fraud harms employers by contributing to the increasingly high cost of workers’ compensation insurance and self-insurance and harms employees by undermining the perceived legitimacy of all workers’ compensation claims.”

The IFPA provides for civil liability for various forms of workers’ compensation insurance fraud. “Every person who violates any provision of this section or Section 549, 550, or 551 of the Penal Code shall be subject, in addition to any other penalties that may be prescribed by law, to a civil penalty of not less than five thousand dollars ($5,000) nor more than ten thousand dollars ($10,000), plus an assessment of not more than three times the amount of each claim for compensation, as defined in Section 3207 of the Labor Code…”

The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged. This privilege is absolute in nature, applying “to all publications, irrespective of their maliciousness.” The litigation privilege is broad, but it has its limits. Like any statute, Civil Code section 47(b) is subject to the rule of statutory construction that a particular provision prevails over a general one.