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NFL Player Dementia Civil Claims Near Settlement

Fox News reports that the NFL and more than 4,500 former players want to resolve concussion-related lawsuits with a $765 million settlement that would fund medical exams, concussion-related compensation and medical research. The plaintiffs include at least 10 members of the Pro Football Hall of Fame, including former Dallas Cowboys running back Tony Dorsett. They also include Super Bowl-winning quarterback Jim McMahon and the family of Pro Bowl linebacker Junior Seau, who committed suicide last year.

Many former players with neurological conditions believe their problems stem from on-field concussions. The lawsuits accused the league of hiding known risks of concussions for decades to return players to games and protect its image. The NFL has denied any wrongdoing and has insisted that safety has always been a top priority. Many have also filed workers’ compensation claims in California, even if they only played one game here.

Senior U.S. District Judge Anita Brody in Philadelphia announced the proposed settlement Thursday after months of court-ordered mediation. She still must approve it at a later date. The settlement likely means the NFL won’t have to disclose internal files about what it knew, when, about concussion-linked brain problems. Lawyers had been eager to learn, for instance, about the workings of the league’s Mild Traumatic Brain Injury Committee, which was led for more than a decade by a rheumatologist.

In court arguments in April, NFL lawyer Paul Clement asked Brody to dismiss the lawsuits and send them to arbitration under terms of the players’ contract. He said that individual teams bear the chief responsibility for health and safety under the collective bargaining agreement, along with the players’ union and the players themselves.

Players lawyer David Frederick accused the league of concealing studies linking concussions to neurological problems for decades. Brody had initially planned to rule in July, but then delayed her ruling and ordered the two sides to meet to decide which plaintiffs, if any, had the right to sue. She also issued a gag order, so it has been unclear in recent weeks whether any progress was being made. The lawyers were due to report back to her Tuesday, but Brody instead announced in court files Thursday that the case had settled.

In recent years, a string of former NFL players and other concussed athletes have been diagnosed after their deaths with chronic traumatic encephalopathy, or CTE. Those ex-players included Seau and lead plaintiff Ray Easterling, who filed the first suit in Philadelphia in August 2011 but later committed suicide.About one-third of the league’s 12,000 former players have joined the litigation since 2011. They include a few hundred “gap” players, who played during years when there was no labor contract in place, and were therefore considered likely to win the right to sue.

The timing of the settlement allowed the NFL to drop the issue from the national conversation before the start of the new season. All 32 clubs were scheduled to play their final exhibition games Thursday night, in preparation for the start of the regular season next week. The first real game is next Thursday, with the reigning Super Bowl champion Baltimore Ravens playing at the Denver Broncos.

Study Says National TTD Duration Decreasing With Unemployment Rate

Previous NCCI studies of Temporary Total Disability (TTD) indemnity benefits duration showed an increase in nationwide average duration following the onset of the Great Recession in 2007.

As this updated, post-recession research shows, Accident Year (AY) 2009 was the nationwide peak at 143 days, and average duration has since declined to 140 days in AY 2012. Average durations have risen or fallen in step with the national unemployment rate. Countrywide estimates in this study are based on data for 46 jurisdictions – all jurisdictions except ND, OH, WA, WV, and WY – and include large deductible and self-insured claims, where reported to NCCI.

Countrywide, the Contracting and Manufacturing industry groups had the steepest declines in average duration from AY 2009 to AY 2011, following substantial increases between AY 2006 and AY 2009. Recent duration trends in the other industry groups were either slight declines or modest increases.

The median of the average durations in states with seven-day waiting periods is about 20 days longer than in states with three-day waiting periods. Within most industry groups, average durations for women are longer than average durations for men. However, men have higher shares of claims than women in the longer-duration industry groups, so that when viewed overall, men’s average duration is longer than women’s.

Duration increased for all age groups between AY 2005 and AY 2009, with most age groups reflecting the countrywide duration increase of 10%. Duration for the youngest age group-workers under age 30 or less – stands out as about 30% lower than countrywide.

West Hollywood Doctor Convicted of Drug Trafficing

A West Hollywood doctor pleaded guilty to a federal drug trafficking charge for writing hundreds of prescriptions for various controlled substances after a federal order revoked his authority to prescribe drugs. James William Eisenberg, 72, who resides in the Venice district of Los Angeles, pleaded guilty to one count distribution of hydrocodone, a drug best known by the brand names Vicodin and Norco.Eisenberg wrote the prescriptions while he worked out of several medical offices in West Hollywood, including a Santa Monica Boulevard storefront he called Pacific Support Services. Eisenberg also issued “medical marijuana” recommendations from these West Hollywood locations. He has been prohibited from issuing such recommendations and from practicing medicine at medical marijuana clinics as a condition of his release on bail.

In order to legally prescribe controlled substances such as hydrocodone, physicians must be registered with the United States Attorney General and have a valid DEA registration number. On December 14, 2011, a DEA administrative judge determined that Eisenberg acted as a “drug dealer” and suspended his registration number. The DEA issued an order permanently revoking Eisenberg’s registration on July 24, 2012. The orders issued by the administrative judge were based on findings that Eisenberg, who at the time was working out of a “medical marijuana” club in Arizona, “lacked a legitimate medical purpose and acted outside of the usual course of professional practice” when he wrote prescriptions for oxycodone (the generic form of a drug often best known as the brand-name OxyContin) and Xanax in exchange for $150 cash payments. The DEA judge also found that Eisenberg wrote “medical marijuana” recommendations to undercover officers posing as patients, and that Eisenberg prescribed OxyContin to one of the undercover agents “before [Eisenberg] had even performed a physical examination.”

DEA investigators later learned that Eisenberg continued to prescribe controlled substances, including hydrocodone, in violation of the DEA’s orders. A review of a California Department of Justice database that can be used to track prescriptions showed that, following the suspension of Eisenberg’s registration number, patients filled more than 1,700 of his prescriptions for controlled substances, including more than 1,200 prescriptions for hydrocodone. As charged in the indictment, Eisenberg wrote one of those prescriptions on December 27, 2011, less than two weeks after his registration number was suspended.

DEA investigators executed a federal search warrant on one of Eisenberg’s West Hollywood offices on February 19, 2013. The affidavit in support of the search warrant outlines evidence, including surveillance and undercover operations, that Eisenberg continued to write prescriptions for controlled substances in violation of the DEA’s revocation order. The evidence included an operation in which an undercover agent, posing as a patient, obtained a prescription from Eisenberg for hydrocodone and alprazolam (the generic form of a drug best known as Xanax).

As a result of his guilty plea, Eisenberg faces a statutory maximum sentence of 10 years in federal prison when he is sentenced by United States District Judge Michael W. Fitzgerald on December 9, 2013.

DWC Posts Changes to Electronic Document Filing and Lien Filing Fee Rules

The Division of Workers’ Compensation has posted a 15-day notice of modification to the electronic document filing and lien filing fee rules to the DWC website. Members of the public are invited to present written comments regarding the proposed modifications to dwcrules@dir.ca.gov until 5 p.m. on September 11.

The proposed modifications include:revisions to the definitions of the terms “cost,” “party,” and “section 4903(b) lien” Revisions also add a new section that sets forth when lien filing or activation fee refunds will automatically take place and provides a procedure for requesting lien fee refunds. This new provision states that lien filing and or lien activation fees will automatically be refunded when (1) a payment was not processed due to a system error; (2) the fee was previously paid or the lien is not available for activation; (3) an improper amount is paid; or (4) a lien filing fee is properly paid, but due to a procedural defect in the filing of the lien, the filing is not effective and the filer was not able to re-file and cure the defect with 15 days. Iif the automatic refund is not issued, the Lien Filing Fee Refund Request form must be submitted with any required documentary proof. A refund will only be provided upon a showing of good cause. The bases for good cause are stated.
Finally there are new revisions to the EAMS reference guide and instructional manual and the JET File Business Rules and Technical Specifications.

The notice, text of the regulations, and forms can be found on the proposed regulations page.

DWC Proposes Changes to Predesignation and PTP Reporting Duties Regs

The Division of Workers’ Compensation issued a notice of public hearing for the Predesignation of Personal Physicians and Reporting Duties of the Primary Treating Physician Rulemaking regulations. The public hearing on the proposed regulations has been scheduled for 10 a.m., October 7, in the auditorium of the San Francisco State Office Building at 455 Golden Gate Ave., San Francisco, CA 94102-3688. Members of the public may also submit written comment on the regulations until 5 p.m. that day.

The regulations implement provisions of Senate Bill (SB) 863 that limit the number of chiropractic visits an injured worker may have unless a specific exception applies. The regulations also revise the method for an employee to designate a personal physician. The changes include:

1) The optional form for an employee to use to predesignate a personal physician to provide them with medical treatment in case of a work related injury or illness is being revised to state that an employee may predesignate a personal physician if, in addition to the other required preconditions, the employee has health care coverage for nonoccupational injuries or illnesses on the date of injury.

2)The form is also being amended to provide space for the employer to provide the name of the insurer that covers them for nonoccupational injuries or illness.

3) The optional form for an employee to use to predesignate a personal chiropractor or personal acupuncturist form is being amended to advise the employee that for dates of injury on or after January 1, 2004, a chiropractor cannot be a treating physician after the employee has received 24 chiropractic visits unless the employer has authorized additional visits in writing. The form will also advise the injured worker that the term “chiropractic visit” means any chiropractic office visit, regardless of whether the services performed involve chiropractic manipulation or are limited to evaluation and management.

4) Once the employee has received 24 chiropractic visits, if the employee still requires medical treatment, the employee will have to select a new physician who cannot be a chiropractor. This prohibition shall not apply to the provision of postsurgical physical medicine prescribed by the surgeon or physician designated by the surgeon pursuant to the postsurgical component of the Division of Workers’ Compensation’s Medical Treatment Utilization Schedule.

The regulations concerning the reporting duties of primary and secondary treating physicians are being revised to include essentially the same information.

The notice, text of the regulations, and forms can be found on the proposed regulations page.

CDI Sets Public Hearing on WCIRB Regulatory Filing

The California Department of Insurance announced that it will hold a public hearing on September 30, 2013 to consider the WCIRB’s January 1, 2014 Regulatory Filing, which was submitted on August 9, 2013. In the Regulatory Filing, the WCIRB proposes a number of changes to the California Insurance Commissioner’s regulations contained in the California Workers’ Compensation Uniform Statistical Reporting Plan – 1995, the California Workers’ Compensation Experience Rating Plan – 1995, and the Miscellaneous Regulations for the Recording and Reporting of Data – 1995. The Regulatory Filing hearing will be held: September 30, 2013 at 10:00 AM California Department of Insurance San Diego Room 300 Capitol Mall, Second Floor in Sacramento.

The Workers’ Compensation Insurance Rating Bureau of California, the nonprofit group that advises the state on rates and regulations, on Aug. 9 proposed that the state change a classification system, use collective bargaining agreements to validate an employee’s hourly wage rate and amend other arcane items.

But, the Sacramento Business Journal reports that the hearing of more general interest will be a second public hearing related to the Rating Bureau’s recommendations, but the Department of Insurance has not yet scheduled one.

In early September, the Rating Bureau will submit its recommendation to state regulators on pure premium rates for policies beginning or renewing on Jan. 1 of next year. Then the Department of Insurance will schedule a separate public hearing on the issue of rates.

The Rating Bureau said earlier this month that it would recommend that insurers boost their base rates by 3.4 percent above the industry average that insurers were charging as of July 1. The organization recommends that workers’ comp insurers file base rates of an average of $2.62 for every $100 of payroll. That is 3.4 percent higher than the industry average of $2.53 as of July 1. The insurance commissioner can accept, reject or modify the base rate that the Rating Bureau recommended. California’s workers’ comp insurers use the recommendations from the commissioner and the Rating Bureau as a benchmark, but they’re free to set their own rates.

Court of Appeal Reverses 100% Fibromyalgia Award and Fixed 4.6% COLA

Elsie Martinez was employed by Southern California Edison until 2004, when she allegedly became unable to work. During her employment with SCE, Martinez was a systems computer programmer. Her work involved repetitive use of her upper extremities. The parties stipulated that she had suffered two industrial injuries which gave rise to two separate workers’ compensation claims: (1) a specific injury to her neck, right shoulder, right wrist, right hand and psyche, which occurred on June 15, 2001, giving rise to the specific injury claim; and (2) a cumulative trauma injury, which arose over the entire period of Martinez’s employment (February 1998 through May 21, 2004), and caused injury to her lumbar spine, cervical spine, both shoulders, both wrists, both hands and psyche, giving rise to the cumulative trauma or CT claim.

The WCJ found that orthopedic and psychiatric impairments in the 2001 specific injury case entitled Martinez to 29% permanent disability, after apportionment. The WCJ found that Martinez’s fibromyalgia entitled her to a 100% permanent disability rating in the CT case and did not apportion any of her permanent total disability to the specific injury or to nonindustrial causes. The WCJ purported to base his decision on the CT claim on the opinion of independent medical evaluator Seymour Levine, M.D., a rheumatologist, who erroneously believed that Martinez had not suffered a specific injury in 2001.

Dr. Levine did not apportion between the specific injury claim and the CT claim as he explained in his report: “The cover letter points out that this patient has filed a claim for a specific incident that was said to have occurred on June 15, 2001. I asked the patient about this specific incident. She told me that there was not a specific injury that occurred on that date. It was on that date that she reported her medical problems.” As a result of his belief that Martinez had suffered no specific injury in June 2001, Dr. Levine concluded that “[T]he injurious exposure in this patient’s case, in my opinion, is one period of cumulative trauma for the dates of February 1998 through May 21, 2004.”

The WCAB denied SCE’s petition for reconsideration of the CT claim and adopted the WCJ’s decision. The award was reversed by the Court of Appeal in the unpublished case of Southern California Edison v WCAB (Martinez).

The opinion noted that labor code section 4664, as amended in 2004, provides that “the employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.” The 2004 legislation represented “a diametrical change in the law with respect to apportionment . . . .” “[T]he new approach to apportionment is to look at the current disability and parcel out its causative sources — nonindustrial, prior industrial, current industrial — and decide the amount directly caused by the current industrial source. This approach requires thorough consideration of past injuries . . . .” The evidence presented here strongly suggests that one or more of Martinez’s disabilities caused by the cumulative trauma overlap with those attributable to the specific injury. In sum, the WCJ’s decision to allow Martinez an unapportioned award for the CT claim rests on a misinterpretation of Dr. Levine’s opinion about the causes of Martinez’s 100% disability and a failure to acknowledge that Dr. Levine’s view that there was no specific injury was wrong, a circumstance that removed overlap and apportionment from his medical reporting.

The Court of Appeal also noted that the WCJ calculated a COLA at the fixed rate of 4.6%. “We find no justification for inflating the award at a flat, unvarying rate of 4.6%. Neither inflation nor the cost of living, nor average wages, increase from year to year at the unvarying rate of 4.6%. Moreover, all of these factors (COLA, inflation, average wages) are more properly the subject of expert testimony, and there was no testimony, expert or otherwise, to support the 4.6% figure.”

Accordingly, the findings of fact and the award on the CT claim must be annulled and the matter remanded for further proceedings. Upon remand, the WCJ must determine whether there is an overlap between the disabilities caused by the CT claim and the specific claim, and, if there is, to apportion the award on the CT claim between the cumulative trauma, the specific injury, and nonindustrial causes.

New Health Care Fraud Alliance Formed

A U.S. public-private alliance co-founded by Blue Cross/Blue Shield Association, AARP, the Identity Theft Resource Center, and others will officially launch next month to fight medical identity theft amid a sickening spike in this form of fraud.

The new Medical Identity Fraud Alliance (MIFA), whose other founders include the Consumer Federation of America, the National Healthcare Anti-Fraud Association, and ID Experts, is aimed at combating medical ID theft by getting together key players and establishing solutions and best practices, technologies, research, as well as educating and helping empower consumers to better protect their increasingly targeted health information. MIFA will also provide a venue for information- and attack intelligence-sharing.

The FBI and U.S. Secret Service will participate in a liaison capacity with MIFA, and the alliance has reached out to both the Federal Trade Commission and Department of Justice. “Medical identity theft is being called the fastest-growing type of fraud,” says Robin Slade, a development coordinator for MIFA, who hails from the fraud-detection side of the financial services industry. “It contributes to the increasing cost of health care.”

Slade says there were 1.85 million victims of medical ID fraud last year, but most insured adults are unaware of this new form of crime, which comes with the added risk of physically endangering the victim. Some 40 percent of medical ID theft victims have had their health insurance canceled due to fraudulent charges; victims spend thousands of dollars and more than a year’s worth of time trying to recover from the fraud, says Bill Barr, a development coordinator with MIFA and co-founder of the Smart Card Forum.

Medical identity theft typically stems from individuals sharing their insurance or other medical information with family or friends, or when health-care organizations suffer breaches that expose patient data. Some 94 percent of U.S. health-care organizations have been hit by at least one data breach, and close to half have suffered more than five breaches in the past two years, according to The Ponemon Institute’s Third Annual Benchmark Study on Patient Privacy and Data Security, published late last year, which was commissioned by ID Experts, one of the co-founders of MIFA.

While about half of victims of medical ID fraud know the perpetrators who abuse their information — typically a family member or friend — according to Ponemon’s data, cybercriminals are increasingly targeting this type of information, too. Underground forums sell packages of stolen information on victims, including so-called “kitz” that include bank account credentials, Social Security numbers, health insurance credentials, and phony driver’s licenses or other IDs. These sell for $1,200 to $1,300, according to Dell SecureWorks, which recently uncovered some of these scams.

Health insurance credentials go for about $20 apiece, plus another $20 for dental, vision, or chiropractic plans, for instance. Buyers are using the health insurance information to get free medical services, drugs, and surgeries, according to Dell SecureWorks.

A perfect storm is brewing for medical ID fraud with the nationwide move to electronic health records, combined with the new health-care law yielding new health-care exchanges and newly insured Americans, Slade says. “It’s a combination of the ‘electronification’ of the data and the increase in data breaches. Plus most consumers are unaware that this [threat exists],” she says.

CVS Pharmacy Refuses Opioid Prescriptions From 36 Suspect Doctors

CVS Caremark Corp said on Wednesday that it has taken the unusual step of cutting off access to powerful pain-killers for more than 36 doctors and other healthcare providers found to prescribe the drugs at an alarmingly high rate. The drugstore chain, which was drawn into a government crackdown on prescription painkiller abuse last year, began revoking the dispensing privileges of certain providers in late 2012, said CVS Chief Medical Officer Troyen Brennan. “This isn’t a definitive solution to the problem,” Brennan told Reuters. “We wanted to share what it was that we did and have other people in healthcare, including other pharmacies, look at what we did and discuss what some more comprehensive solutions might be.”

CVS disclosed the suspensions in an article published on Wednesday on the website of the New England Journal of Medicine. “At CVS, we recently instituted a program of analysis and actions to limit inappropriate prescribing. Our program was intended to identify and take action against physicians and other prescribers who exhibited extreme patterns of use of ‘high-risk drugs’ relative to other prescribers.”

CVS identified high-risk prescribers by benchmarking them against others on several parameters. It used data from submitted prescriptions from March 2010 through January 2012 for hydrocodone, oxycodone, alprazolam, methadone, and carisoprodol. Prescribers were compared with others in the same geographic region who had the same listed specialty. The first parameters were the volume of prescriptions for high-risk drugs and the proportion of the prescriber’s prescriptions that were for such drugs, as compared with the volume and proportion for others in the same specialty and region; the thresholds for suspicion were set at the 98th percentile for volume and the 95th percentile for proportion.

Next, prescribers were evaluated with regard to the number of their patients who paid cash for high-risk-drug prescriptions and the percentage of their patients receiving high-risk drugs who were 18 to 35 years of age. In both cases, the thresholds for suspicion were set at the 90th percentile among clinicians in the same region and specialty.

Finally, CVS compared the prescriptions for noncontrolled substances with the prescriptions for controlled substances within the prescriber’s practice on the same parameters. CVS initially identified 42 outliers from the database of nearly 1 million prescribers. To minimize the possibility that CVS would suspend dispensing privileges for clinicians who were appropriately treating patients, it attempted to interview physicians who were identified as outliers to ascertain the nature of their practice and their use of controlled substances. After further screening, 36 met the criteria for suspension.

Pharmacists have an ethical duty, backed by both federal and state law, to ensure that a prescription for a controlled substance is appropriate. The DEA has now identified both pharmaceutical distributors and chain pharmacies as part of the problem, encouraging the industry to develop new programs to reduce inappropriate use.

DWC Posts Fourth Modification to SJDB Regulations

The Division of Workers’ Compensation (DWC) has posted a fourth 15-day notice of modification to the supplemental job displacement benefit regulations to the DWC website. Members of the public are invited to present written comments regarding the proposed modifications to dwcrules@dir.ca.gov until 5 p.m. on September 6.

Section 10133.31 (Supplemental Job Displacement Nontransferable Voucher for Injuries Occurring on or After 1/1/13) subdivision (f)(5) is amended to allow injured workers to submit a written invoice for computer equipment to be paid directly to the retailer. The employer may also offer to provide the computer equipment directly to the employee. Subdivision (j) is amended to indicate that if computer equipment is provided, it must be provided to the employee within 45 days of receipt of the Request for Purchase of Computer Equipment.

The form (DWC-AD 10133.32 – Supplemental Job Displacement Nontransferable Voucher for Injuries Occurring on or After 1/1/13) is amended to conform with the proposed changes to Section 10133.31. The form is amended to include a separate box that the employee can select if the employer or claims administrator offers to provide the computer directly to the employee.

The notice, text of the regulations, and forms can be found on the proposed regulations page.