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Court of Appeal Overturns WCAB in Psyche Injury Case

Michael Brooks started working as a supervising probation officer at the County of Sacramento’s juvenile hall in 2007, and was apprised of a pending lawsuit alleging use of excessive force by the officers there. He observed problems he believed bordered on violation of protocols and felt that the Security Emergency Response Team (SERT), which he supervised, resisted and undermined his authority and supervision.

In November 2007, Brooks counseled two of the SERT officers as a result of an incident with a ward. Brooks informed his supervisor that the SERT officers resisted his instructions concerning restraining and movement of wards. Later Assistant Chief Deputy John O’Brien met with Brooks and gave him a memo entitled “Admonition and Notice of Internal Affairs Investigation.” The memo advised Brooks of the allegations by Ron Parker, a SERT member, which formed the basis of the internal affairs investigation. The memo directed Brooks to refrain from any supervisory duties which involve Ron Parker, refrain from abusive and or indiscreet language toward Ron Parker, and refrain from any other actions that could reasonably be construed as an attempt to intimidate or threaten Ron Parker. Brooks believed that these directives were unreasonable when it was his job to supervise Ron Parker. Brooks believed that with these directives he would not be able to intervene in an emergency.

Brooks asked to be reassigned or placed on administrative leave pending completion of the investigation. His requests were denied. Brooks did not feel that the Chiefs listened to his concerns or provided a reasonable alternative. However, the employer allowed Brooks to change his shifts to reduce contact with Ron Parker. Brooks went to work on January 2, 2008 and saw that Ron Parker was scheduled to work. Brooks was too upset to work and filed a workers’ compensation psychiatric injury claim which the employer denied. The defense of the claim involved the “good faith personnel action” defense.

Psychiatrist Ann E. Allen, M.D., acted as the agreed medical evaluator. Dr. Allen reported that his disorder was caused by (1) Parker’s complaint, (2) the internal affairs investigation, and (3) Brooks’s feelings that his supervisors were not supporting him. Based upon her report, the WJC found an industrial injury. Ultimately the WCAB affirmed the WCJ’s decision, with one dissenting commissioner, The employer appealed, and the Court of Appeal reversed the finding of injury in the published decision of County of Sacramento v WCAB, Michael Brooks.

The Court of Appeal agreed that Dr. Allen’s reports and testimony did not constitute substantial evidence. Labor Code section 3208.3 was enacted as part of the Margolin-Greene Workers’ Compensation Reform Act of 1989. It is part of the Legislature’s response to increased public concern about the high cost of workers’ compensation coverage, limited benefits for injured workers, suspected fraud and widespread abuses in the system, and particularly the proliferation of workers’ compensation cases with claims for psychiatric injuries. The Legislature’s expressed intent in enacting Labor Code section 3208.3 was to establish a new and higher threshold for compensability for psychiatric injury. To further this more restrictive policy, subdivision (h) provides: “No compensation under this division shall be paid by an employer for a psychiatric injury if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action.”

A personnel action has been defined as conduct attributable to management in managing its business, including such things as reviewing, criticizing, demoting, transferring, or disciplining an employee. An employer’s disciplinary actions short of termination may be considered personnel actions even if they are harsh and if the actions were not so clearly out of proportion to the employee’s deficiencies so that no reasonable manager could have imposed such discipline.

The reports of Dr. Allen, when “taken as a whole, were so confusing and changing that Dr. Allen’s opinion cannot be deemed support for the Board’s conclusion that personnel actions were not a substantial cause of Brooks’s injury. Therefore, the Board’s award must be annulled.”

San Garbriel DME Owner Pleads Guilty to Federal Fraud Charges

Federal officials announced that a former owner of a Los Angeles-area medical equipment supply company pleaded guilty Monday to conspiring with others to defraud Medicare.

Tigran Aklyan, 37, of Van Nuys, California, pleaded guilty before U.S. District Judge Michael W. Fitzgerald in the Central District of California to one count of conspiracy to commit health care fraud.

According to court documents, Aklyan was the owner and president of Las Tunas Medical Equipment Inc., a durable medical equipment (DME) supply company located in San Gabriel, California. Aklyan admitted that from approximately October 2007 through May 2009, he conspired with others to commit health care fraud through the operation of Las Tunas by providing medically unnecessary power wheelchairs and other DME to Medicare beneficiaries and submitting false and fraudulent claims to Medicare. Aklyan admitted that he paid the owners and operators of fraudulent medical clinics to provide him with prescriptions and supporting medical documentation for the power wheelchairs and DME that he billed to Medicare. Aklyan admitted knowing that the prescriptions and medical documents that the clinics produced were fraudulent, yet he certified to Medicare with the submission of each claim that the DME was medically necessary. Aklyan also admitted that he knew it was illegal for him to pay for prescriptions, but he did so anyway.

From approximately December 17, 2007 through February 20, 2009, Aklyan, through Las Tunas, submitted approximately $910,377 in fraudulent claims to Medicare for power wheelchairs and related services, and Medicare paid Las Tunas approximately $653,461 on those claims.

At sentencing, scheduled for August 5, 2013, Aklyan faces a maximum penalty of 10 years in prison and a $250,000 fine.

The case was investigated by the FBI and HHS-OIG and was brought as part of the Medicare Fraud Strike Force, supervised by the Criminal Division’s Fraud Section and the U.S. Attorney’s Office for the Central District of California.

Since its inception in March 2007, the Medicare Fraud Strike Force, now operating in nine cities across the country, has charged more than 1,480 defendants who have collectively billed the Medicare program for more than $4.8 billion. In addition, HHS’s Centers for Medicare and Medicaid Services, working in conjunction with HHS-OIG, are taking steps to increase accountability and decrease the presence of fraudulent providers. To learn more about the Health Care Fraud Prevention and Enforcement Action Team (HEAT), go to www.stopmedicarefraud.gov.

DWC Audit Unit to Investigate Electronic Billing Regulation Compliance

The Division of Workers’ Compensation April 19 Newsline issued the following warning to claims administrators.

The DWC has received complaints regarding claims administrators who do not accept electronic bills from medical providers. The DWC Audit Unit has begun investigating claims administrators to determine if they accept electronic transmissions of medical bills.

Provisions relating to electronic medical bills became effective Oct. 18, 2012. By statute, claims administrators are required to accept electronic bills and may develop their own capacity to accept e-bills or may contract with a vendor to perform the function. Participation in e-billing is optional for medical providers.

Claims administrators who do not comply with the e-billing regulations will be subject to assessment, including civil penalties. The electronic billing rules are available on the DWC website. Claims administrators seeking assistance in implementing electronic medical bill processing may wish to consult one or more of the service providers who have elected to be listed on the DWC website. Other companies not listed may be equally capable of providing electronic bill processing services or products.

Imprisoned Former Orange County Sheriff Resolves Comp Case

Former Orange County Sheriff Mike Carona, who is serving a 66-month term in federal prison for public corruption, has settled two workers’ compensation cases against Orange County for more than $37,000 over injuries he suffered on duty, according to state records reviewed by the Orange County Register.

The Orange County Register says that Carona, 57, agreed through his attorney to accept $22,165 as compensation for lower back, hip and leg injuries he suffered in a car crash Dec. 5, 2005

The claim stems from a car accident on Dec. 5, 2006. Carona was a passenger in an unmarked department vehicle that rear-ended another car causing an injury to his lower back.The driver of the car was an investigator from what was formerly known as the dignitary protection unit, which regularly provided security and transportation for Carona. The investigator picked up Carona at his home because Carona had a full schedule that day, and when they were traveling near Chapman Avenue and Earlham Street in Orange about 8 a.m.,traffic suddenly stopped and they rear-ended the car in front of them.

Carona’s driver and the driver of the other car were not injured. But Carona filed a workers’ compensation claim for his back pain at the time, and it was accepted. Since then, Carona has received medical treatment through the claim.Then Carona filed an application for adjudication of claim.

Carona resigned from office after nine years in January 2008 to focus on his federal public corruption trial. He was convicted in 2009 of federal witness tampering and sentenced to 66 months in prison. He was acquitted on five other charges, including conspiracy, three charges of mail fraud and one additional count of witness tampering. He was ultimately convicted and sentenced to 5 1/2 years in prison and a fine of $125,000.

A doctor examined Carona before he reported to a Colorado prison in January 2011 and determined he suffered permanent injuries on the job.

Last year, the U.S. Supreme Court declined to review Carona’s appeal. Carona had argued prosecutors breached an ethical rule when they had an assistant sheriff secretly record him in 2007, and that he was charged under the wrong federal statute.

Controller Critiques Los Angeles Comp Program

City Controller Wendy Greuel issued her latest audit, raising serious concerns about the City’s Worker’s Compensation Salary Continuation Program for employees injured on the job. Her audit finds potential savings of up to $5.2 million annually by bringing the City’s non-sworn employee payment program in line with other jurisdictions in the State of California.

Greuel called on the responsible departments and City leaders to act immediately to protect taxpayer resources and reduce t he benefits to a level comparable with others throughout the State. The State Rate for temporary disability is two thirds of an employee’s take-home pay not to exceed $1 ,067 per week, while Los Angeles pays an employee’s full salary for the first 52 weeks. As all disability pay is tax-exempt by law, the City’s policy creates the potential for earning more than 100% of salary and, in some instances, employees earn more while on disability leave than while working.

“I am deeply concerned by the findings of this audit. While it is critical to support our injured employees, Los Angeles absolutely cannot afford to leave $5 million a year on the table that could go towards keeping our children safe and our roads paved,” said Greuel.

Greuel’s audit found that Injury on Duty (IOD) payments have increased dramatically each of the last four years, from $12.6 million in 2009 to over $19 million in 2012. According to the audit, this increase is most likely a result of employees receiving payments for a longer period of time, rather than an increase in the number of employees receiving payments.

The audit also evaluated system controls to prevent overpayments. A test sampling of payment data identified $127,000 in overpayments due primarily to departments’ failure to terminate salary continuation payments following the 52 week period and a failure to communicate between two independent systems.

“I am pleased that the Personnel Dept is working closely with my Office to enhance oversight and improve communications and controls for Workers Compensation” Greuel said.

Controller Greuel has conducted more than 80 audits and and claims she uncovered more than $160 million that the City has lost to wasteful spending, fraudulent activity, and abuse of city resources.

CEO and Accounting Director Accused of $1.45 Million Comp Fraud

The Palm Desert Patch reports that a father and son are accused of more than $1 million in workers’ compensation insurance fraud. Indio resident Jesse Garcia Contreras, 57, and his son, 32-year-old Carlos Contreras of Bermuda Dunes, have each pleaded not guilty to six felony counts of workers’ compensation insurance fraud. They both face up to 19 years and eight months in prison if convicted, according to John Hall of the Riverside County District Attorney’s Office.

Jesse Contreras is president and CEO of Thousand Palms-based Sunshine Landscape and Carlos Contreras is the company’s accounting director. Sunshine Landscaping contracts with many homeowner’s associations and businesses in the Coachella Valley, according to Hall and the company’s website.

An 18-month investigation showed that the Contrerases allegedly defrauded the State Compensation Insurance Fund and insurance companies out of about $1.45 million from January 2008 to March 2012, Hall said.

“The defendants intentionally misclassified dozens of employees as having jobs that were less dangerous than they actually were. They classified more than 40 tree trimmers as landscapers, therefore having to pay far less in workers’ compensation insurance premiums,” Hall alleged.

He said the case was investigated by the Inland Empire Premium Fraud task force because of a complaint of possible fraud filed by Zenith Insurance Company with both the California Department of Insurance and the Riverside County District Attorney’s Office.

“By cheating insurance companies out of their rightful premiums, this type of criminal conduct causes there to be an uneven playing field for those businesses which are doing things the right and legal way,” District Attorney Paul Zellerbach said. “Crimes like this also cause an increase in insurance premiums for those businesses which are following the law. It is this office’s responsibility to make sure that businesses operate under the same rules and guidelines to ensure that there is a fair marketplace.”

Another Drugmaker Settles Kickback Charges

Amgen Inc., a California-based biotechnology company, has agreed to pay the United States $24.9 million to settle allegations that it violated the False Claims Act. Amgen develops, manufactures, and sells pharmaceutical products, including products sold under the trade name Aranesp.

The settlement resolves allegations that Amgen paid kickbacks to long-term care pharmacy providers Omnicare Inc., PharMerica Corporation and Kindred Healthcare Inc. in return for implementing “therapeutic interchange” programs that were designed to switch Medicare and Medicaid beneficiaries from a competitor drug to Aranesp. The government alleged that the kickbacks took the form of performance-based rebates that were tied to market-share or volume thresholds. The government further alleged that, as part of the therapeutic interchange program, Amgen distributed materials to consultant pharmacists and nursing home staff encouraging the use of Aranesp for patients who did not have anemia associated with chronic renal failure.

“We will continue to pursue pharmaceutical companies that pay kickbacks to long-term care pharmacy providers to influence drug prescribing decisions,” said Stuart F. Delery, Acting Assistant Attorney General for the Justice Department’s Civil Division. “Patients in skilled nursing facilities deserve care that is free of improper financial influences.”

“By this agreement we are making important strides in holding drug manufacturers accountable for fraudulent and abusive practices not only in South Carolina but nationwide,” said William Nettles, U.S. Attorney for the District of South Carolina. “I am proud of the tireless work of this office to investigate this case across the country.”

This civil settlement resolves a lawsuit filed under the qui tam, or whistleblower, provision of the False Claims Act, which allows private citizens with knowledge of false claims to bring civil actions on behalf of the United States and share in any recovery. The False Claims Act suit was filed in the U.S. District Court for the District of South Carolina, and is captioned United States ex rel. Kurnik v. Amgen Inc., et al.

Acting Assistant Attorney General Delery noted that the settlement with Amgen, Inc. was the result of a coordinated effort among the Civil Division, the U.S. Attorney’s Office for the District of South Carolina, and the U.S. Department of Health and Human Services, Office of Inspector General.

This resolution is part of the government’s emphasis on combating health care fraud and another step for the Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced by Attorney General Eric Holder and Kathleen Sebelius, Secretary of the Department of Health and Human Services in May 2009. The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation. One of the most powerful tools in that effort is the False Claims Act, which the Justice Department has used to recover more than $10.3 billion since January 2009 in cases involving fraud against federal health care programs. The Justice Department’s total recoveries in False Claims Act cases since January 2009 are over $14.2 billion.

The claims settled by this agreement are allegations only; there has been no determination of liability.

CWCI Studies Toxic Injuries

A new California Workers’ Compensation Institute (CWCI) “Injury Scorecard” on job injury claims identified as “other injuries, poisonings and toxic effects” finds that these claims often involve non-specific or ill-defined diagnoses; are more likely than other claims to involve attorneys and permanent disability payments; take longer to close; result in above average loss payments; and a disproportionate share of them (32.5%) are filed by Los Angeles County residents. CWCI compiled data for the Score Card from 169,287 open and closed claims for 2001-11 injuries in which the primary diagnosis fell into the “other injury, poisoning and toxic effect” category. As of January 2012, medical and indemnity benefit payments on those claims totaled nearly $3.1 billion.

The Score Card shows that during the 11-year span of the study, “other injury, poisoning and toxic effect cases accounted for 7.7% of California’s workers’ compensation claims, but 10.1% of workers’ compensation loss payments, as more than 1 out of every 5 of these injuries resulted in a permanent disability payment (vs. 1 in 6 injury claims overall), nearly 2/3 of the lost-time claims in this category involved an attorney (vs. less than half of all lost-time claims), and PD claims in this category took longer to close than other PD claims.

Notably, during the pre-reform era of 2001-03, average paid losses on other injury, poisoning and toxic effect claims were below the average for all claims, but unlike other types of injury claims, loss payments on these claims never declined following the 2002-2004 workers’ compensation reforms, and have remained above average since 2004. For example, the Score Card shows average loss payments at 36 months post injury on AY 2001-03 other injury, poisoning and toxic effect indemnity claims totaled $26,512 ($12,891 medical + $13,622 indemnity), or 8.9% less than the average for all indemnity claims. But, while average 36-month losses for all indemnity claims fell 13.9% in the 3 years after the reforms, average payments on indemnity claims in this category rose 17% to $31,015; then continued up for 3 more years, rising 30.7% to $40,547 ($23,801 medical + $16,746 indemnity) for AY 2007-09 claims – 38.8% above the average for all indemnity claims from the same era.

Aside from tracking average paid losses for 2001 through 2009 other injury, poisoning and toxic effect claims at 12-, 24- and 36-months post injury, the CWCI Score Card provides a profile of claimants in this injury category, as well as claim distributions by industry sector, the claimants’ county of residence, and cause and nature of injury. Several exhibits also compare other injury, poisoning and toxic effect claim results to those for all California workers’ compensation claims (these include exhibits showing the percentage of claims with PD payments within 3 years of injury; attorney involvement data; claim closure data; prescription drug distributions; breakdowns of medical development by Fee Schedule Section at 12 and 24 months post injury; notice and treatment time lags; and medical network utilization rates).

In addition to the Score Card on “other injury, poisoning and toxic effect” claims, recent Score Cards have examined medical back problems with and without spinal cord or root involvement; shoulder, arm, knee and leg sprains; head and spinal injuries without spinal cord involvement; and carpal tunnel syndrome. Injury Score Cards and summary Bulletins are available to CWCI members and subscribers who log on to www.cwci.org.

Investigators Search For Evidence of Pacific Hospital Kickbacks

The Wall Street Journal, in a new story published this week, claims that the U.S. attorney for the Central District of California is investigating allegations that the Pacific Hospital of Long Beach executive paid kickbacks to physicians so they would refer their patients for spine surgery at his facility. Over the past 15 years, Michael D. Drobot built a Southern California business empire centered on treating people with back problems, many of them workers’ compensation patients. At the heart of the operation is Pacific Hospital of Long Beach, a 184-bed facility that Mr. Drobot bought in 1997 and turned into a spine-surgery center.

Federal Bureau of Investigation agents raided the hospital and another company owned by Mr. Drobot earlier this month as part of what the agency termed a fraud investigation. Representatives for the FBI and the U.S. attorney’s office declined to give specifics about the probe.People familiar with it say it is focused on allegations that Mr. Drobot operated a kickback scheme, under which he allegedly paid doctors thousands of dollars for each spine surgery they referred to Pacific Hospital. Under California’s anti-kickback statute, it is illegal to pay money to induce patient referrals. The practice is also illegal under federal law if the patients referred are insured by government health programs such as Medicare or Medicaid.

“Mr. Drobot and the hospital categorically deny any accusation of impropriety concerning the hospital’s outstanding and world-class spinal treatment program,” Laura Salas Reyes, a spokeswoman for Pacific Hospital, said, adding that both Mr. Drobot and the hospital “are cooperating fully with authorities looking into the matter.”

In written responses to questions from The Wall Street Journal for a front-page article last year, Mr. Drobot denied paying kickbacks to doctors for patient referrals. The article identified Pacific Hospital as a prolific spine-surgery facility: From 2001 to 2010, according to state data, it performed 5,138 spinal fusions on workers’ compensation patients and billed $533 million for them – three times as much as any other hospital in California.

Spine surgery is among the most profitable businesses for hospitals nationwide. In California’s workers’ compensation system, it can be even more lucrative because hospitals are allowed to bill separately for spinal implants, creating room for abuse through excessively marked-up implant charges, according to fraud investigators employed by insurers.

Along with Pacific Hospital, Mr. Drobot owns a spinal-implant distributorship. Federal agents are investigating allegations he paid surgeons who agreed to use his distributorship’s implants $15,000 for each lumbar fusion and $7,500 for each cervical fusion they performed at Pacific Hospital, the people familiar with the probe said. Surgeons who didn’t use his implants were allegedly paid smaller sums, these people said.

Drobot’s distributorship resold implants made by Alphatec Holdings Inc. Documents reviewed by the Journal show that Pacific Hospital marked up the Alphatec implants supplied by Mr. Drobot’s distributorship sharply when it billed them to patients’ insurers – in excess of limits set by the California’s workers’ compensation division. Alphatec’s general counsel, Ebun Garner, said the firm let its contract with Mr. Drobot expire earlier this year after he violated it by charging excessive prices. Mr. Drobot didn’t reply to an inquiry put to him through the hospital about Mr. Garner’s version of events.

The U.S. attorney is probing allegations Mr. Drobot funneled the kickbacks to surgeons via another firm he owns that provides collection services to doctors, the people familiar with the probe said. In his answers to questions from the Wall Street Journal last year, Mr. Drobot denied any improper arrangements between the firm and surgeons operating at Pacific Hospital.

DWC Revises WCIS Penalty Regulations

The Division of Workers ’ Compensation has revised proposed regulations providing for the assessment of administrative penalties for Workers’ Compensation Information System (WCIS) reporting violations and posted them to the online forum where members of the public may review and comment on the proposal.

In addition, DWC has posted on the forum for comment a revised version of the California EDI Implementation Guide for First and Subsequent Reports of Injury (Version 3.1), a necessary tool in the electronic reporting of claim data to WCIS.

The proposed administrative penalty regulations implement Senate Bill 826, which amended Lab or Code section 138.6 by authorizing DWC to assess administrative penalties, up to $5,000 per year for each claims administrator, for a failure to report claim information or the failure to report such information accurately to WCIS. The proposed regulations provide:

  • Schedule of penalties capped at $5,000 against a claims administrator in any given year. The schedule provides for no more than $100 per violation for violations where a mandatory report is not submitted or not accepted, and no more than $50 per violation for violations involving specific errors or late filings.
  • Threshold rates of violations that are excluded from the calculation of penalty assessments.
  • A requirement for DWC to publish an annual report on the compliance of claims administrator s.

The revised WCIS implementation guide contains minor updates and corrections to the current version, (3.0), which became effective in November 2011. Changes address the manner of transmitting data to WCIS, the filing of annual and final reports, requirements for specific data elements, data edits, and secondary matching criteria.

The proposed penalty regulations are sections 9705.1 through 9705.2 in Title 8 of the California Code of Regulations.

The forum can be found online on the DWC website by clicking on current forums

Comments will be accepted on the forum until 5 p.m. on April 29. The DWC invites interest persons to participate in this important process