Author: WorkCompAcademy

Belinda Go sustained industrial injury to her neck while working for Sutter Solano Medical Center as a registered nurse in 2013.

On May 7, 2015, one of her treating physicians, Christopher Neuberger, M.D. submitted a request for authorization (RFA) for cervical spine surgery and related treatment and services. The RFA was submitted by defendant to its UR provider, which denied authorization. Applicant obtained IMR pursuant to Labor Code section 4610.5, but the UR denial was upheld in a July 22, 2015 IMR determination.

On September 11, 2015, her condition was found to be permanent and stationary following the UR denial by her primary treating physician. A consulting physician said that her neck disability caused 5% whole person impairment (WPI), which rated 7% permanent disability after apportionment of 20% to nonindustrial factors.

Belinda Go returned to work for a period of time until March 22, 2016, and experienced increased symptoms during that time. On March 28, 2016, she followed Dr. Nueberger’s recommendation for cervical spine surgery and self-procured it from Jason Huffman, M.D.

On August 1, 2016, applicant was evaluated by PQME Dr. Zwerin, who found that applicant’s condition became permanent and stationary on July 28, 2016, four months after the surgery. Dr. Zwerin further determined that as a result of the unauthorized surgery, applicant’s neck disability caused 17% WPI and that 20% of the permanent disability is properly apportioned to nonindustrial factors.

Defendant disputed the determination of Dr. Zwerin and argued that because authorization for the cervical spine surgery was denied through the UR and IMR processes that it has no liability for permanent or temporary disability that the surgery caused. Defendant further contends that the pre-surgery reporting of Dr. Cohen should be followed to award 7% permanent disability.

The WCJ found that applicant was entitled to temporary disability indemnity for a period of time following the cervical spine surgery, and finding that the industrial injury caused 23% permanent disability after apportionment, as opined by PQME Dr. Zwerin. The defendant’s petition for reconsideration was denied in the panel decision of Go v Sutter Solano Medial Center.

After reviewing several conflicting panel decisions on this issue, this panel concluded that “An employee is entitled to unapportioned compensation for permanent disability caused by reasonable medical treatment of the industrial injury. (See, Hikida v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679] [2017 Cal. App. LEXIS 572].) In that the UR and IMR statutes are silent on the question of temporary disability indemnity, an employee is not precluded from claiming it even if the disability results from reasonable medical treatment that is self-procured pursuant to section 4605.”

The U.S. Food and Drug Administration just announced a series of measures designed to speed to market generic versions of complex drugs in an effort to address the rising cost of pharmaceuticals.

The measures, announced in a blog post by Commissioner Scott Gottlieb, stray into an area that has not previously been the FDA’s purview: drug prices. The agency has typically made its decisions based on safety and efficacy without regard to cost.

Gottlieb said the measures are designed to increase competition in the market by enabling generic competition to complex drugs, something he has long argued for.

Earlier this year, he announced the Drug Competition Action Plan to advance new policies aimed at bringing more competition to the drug market. The goal was to improve access consumers have to the medicines that they need. Access to medicine is a matter of public health. “If consumers are priced out of the drugs they need, that’s a public health concern that FDA should address, within the scope of its mandate and authorities.”

The plan has a number of different domains. Among them is a compilation of efforts to improve the efficiency of the generic drug approval process; and another is a group of policies aimed at closing loopholes that allow branded drug companies to game FDA rules in ways that forestall the generic competition that Congress intended.

One important group of policies is aimed at making it easier to bring generic competition to a category of branded drugs known as complex drugs. Thus the FDA announced a major new set of policies to advance these goals.

Complex drugs comprise high cost medicines like metered dose inhalers used to treat asthma, as well as some costly injectable drugs. These medicines generally have at least one feature that makes them harder to “genericize” under traditional approaches. As a consequence, these drugs can face less competition. In some cases, costly, branded drugs that are complex drugs have lost their exclusivity, but are subject to no generic competition.

The new policies just announced are aimed at ensuring that the FDA provides as much scientific and regulatory clarity as possible with respect to complex generic drugs. The new guidance provides information on requesting and conducting product development meetings, pre-submission meetings, and mid-review cycle meetings with FDA. These meetings will allow for enhanced communication between generic drug applicants and FDA early in the generic drug development process, allowing for more efficient generic drug development, review, and approval pathways.

The FDA commissioner says it will soon release other important policies aimed at spurring competition to complex drugs.

Former QMEs Dr. Timothy C. Howard, Dr. Meera Jani and Dr. Benjamin Simon have filed a lawsuit in the Los Angeles Superior Court against the California Department of Industrial Relations, its Director Christine Baker and other officials seeking a writ of mandate ordering their reinstatement and reappointment as a QME.

Howard has been licensed as an orthopedist since 1971, and has performed 400 to 500 total knee and hip surgeries, and 200 to 300 spinal surgeries. He was first appointed as a QME in 2005, and has prepared approximately 1,500 QME reports. Jani has been licensed as a chiropractor since 2000, and was first appointed as a QME in 2001. Simon has practiced medicine as a cardiologist for 30 years during which time he has performed thousands of interventional procedures. He has been a QME since 2015 and has prepared approximately 150 QME reports.

Prior to the DWC’s actions described below, none of them claim to have received any billing or other complaints from the DWC.

They allege that in addition to these three plaintiffs, so far approximately 400 QMEs have now “unlawfully” been denied reappointment out of a total DWC panel of only 3,000 QMEs, or approximately 1 3 .3% of all QMEs in California.

The 134 page complaint cites a variety of reasons for issuance of the relief they request. They assert that the DWC has “engaged in a scorched earth policy to deny reappointment licenses to qualified medical evaluators without due process of law – including without a hearing to challenge Respondents’ mere accusations – through Respondents’ imposition of new and different criteria governing such reappointments and the medical-legal fee schedule applicable to QMEs in California.”

The “new policy” they claim is the product of “underground regulations.” They allege that the DIR has “without notice, intentionally adopted underground regulations regarding the medical-legal fee schedule used as prima facie evidence of the reasonable fees paid for QME medical-legal evaluations of injured workers under California’s workers’ compensation system. These underground regulations are being utilized by Respondents to impose new and different criteria that effectively eliminate hourly billing code 104, a goal sought by the workers’ compensation insurers and other payors of the workers’ compensation benefits, which is contrary to the interests of the injured workers that workers’ compensation laws, for over 100 years, are designed to protect.”

Plaintiffs further say that respondents “are required by California law to provide QMEs with a hearing that protects QME rights to due process of law and procedural safeguards, before suspending, terminating or otherwise disciplining a QME for crimes, fraud, and all other violations of law, save for a few specifically enumerated circumstances that are irrelevant herein. However, through its use of underground regulations, Respondents have improperly extended the “no due process hearing” exception to apply specifically to the reappointment process for QMEs, thereby illegally denying reappointment based solely on mere accusations, and thus achieving an end-run around the QMEs’ rights to a due process hearing.”

The three allege they have requested hearings to contest the denial of their reappointment, and that the DIR refuses to allow them any type of hearing to present their case.

Petitioners allege that “a disproportionate number of QMES who have been denied reappointment without a due process hearing based on Respondents’ mere accusations of violations of the medical-legal fee schedule, reside in Los Angeles County.”

According to an indictment made public on Wednesday, the U.S. Justice Department has brought new charges over a scheme that it says enabled Tenet Healthcare Corp to fraudulently bill state Medicaid for $400 million.

William Moore, the ex-chief executive of Atlanta Medical Center Inc, which had been operated by Tenet; and Edmundo Cota, the ex-head of a clinic operator that provided prenatal care to Hispanic women, were charged in an indictment filed in Atlanta federal court. They were added as defendants in a case the Justice Department brought in February against John Holland, a former Tenet senior vice president. The trio faces multiple charges including conspiracy and wire fraud, according to the indictment.

The charges came after Dallas-based Tenet and two of its Atlanta-area units in October 2016 reached a deal with the Justice Department and agreed to pay more than $513 million to resolve criminal charges and civil claims in a related case.

Brian McEvoy, a lawyer for Moore at the law firm Polsinelli PC, said in a statement he was “extremely disappointed” with the agency’s action. “Mr. Moore is not guilty and we look forward to presenting this case to a jury at trial,” McEvoy said.

A lawyer for Cota, the former CEO of medical clinic operator Clinica de la Mama, could not be immediately identified. A Justice Department spokesman declined to comment.

The indictment said that from 2000 to 2013, Holland, Moore Cota engaged in a scheme to cause Tenet to pay over $12 million in bribes and other illegal inducements to Clinica, which operated clinics in Georgia and South Carolina. In exchange, the owners and operators of Clinica referred patients to Tenet hospitals and arrange for medical services for Clinica patients related to child birth at the hospitals.

To justify the $12 million, Holland, Moore, Cota and others created pre-textual contracts between Tenet’s hospitals and Clinica, which provided services mostly to undocumented Hispanic women, the indictment said.

In order to steer patients to Tenet hospitals in Georgia and South Carolina, Cota and others blocked doctors from seeing patients at Clinica unless the physicians agreed to deliver their babies at Tenet hospitals, the indictment said.

Prosecutors said the scheme enabled Tenet hospitals to fraudulently bill the Georgia and South Carolina Medicaid programs for over $400 million, and allowed Tenet to receive at least $127 million on those claims.

The case is U.S. v. Holland, et al, U.S. District Court, Northern District of Atlanta, No. 17-cr-234.

Governor Brown signed AB 1422 into law on Tuesday. According to the Governor’s signing memo he said “I am signing AB 1422 which is clean-up legislation to last year’s workers’ compensation anti-fraud bills, AB 1244 and SB 1160. Those measures established new requirements and authority to help prevent and reduce fraud in the workers’ compensation system. Specifically, they require the suspension of medical providers who have been convicted of crimes involving fraud or abuse. They also require placing a stay on any liens filed by providers charged with such crimes (pending disposition of the charges).”

“AB 1422 confirms that the Workers’ Compensation Appeals Board retains jurisdiction to resolve disputes about the applicability of the automatic stay provision to specific liens. This bill is declaratory of existing law which provides for the resolution of these disputes through the Board’s current practices and procedures. Nothing in last year’s legislation creating the stay was intended, or operated, to divest the Board from jurisdiction over these issues.”

The Administrative Director of the Workers’ Compensation System would be authorized to adopt regulations to implement these provisions.

The original fraud law was ambiguous in terms of the status of liens filed by companies who were not themselves part of a criminal prosecution. Under the revised law, the stay provisions will apply not only to a person who is being prosecuted, but to a “controlled entity” as well. An entity is controlled by an individual if the individual is an officer or a director of the entity, or a shareholder with a 10 percent or greater interest in the entity.

In addition, the amendments address some other complications that have arisen. For example, in criminal law, a conviction is not entered until judgment is imposed, which usually means at the time of sentencing. With respect to addressing liens, that time frame does not work in cases where a provider pleads guilty, agrees to cooperate with prosecutors, and delays sentencing for an extended period. Other clarifications, such as the right to refuse to pay a bill of a convicted provider, simply fill in some gaps in the drafting of last year’s bills.

In some respects, the amendments are intended to be more explicit about what the Legislature intended the language in last year’s enactments to mean – and these are designated as declaratory of existing law because it is clear that the new language is precisely what was intended by the Legislature in this bill and SB 1160.

The new law deletes language that terminates the stay on lien proceedings at the end of the criminal proceedings, and specifies that the stay remains in effect until the completion of the special administrative proceedings that apply to liens filed by providers convicted of workers’ compensation fraud.

With respect to the constitutional issue of “due process” over the automatic stay provisions, the new law added the following language to LC 4615 “(e) The automatic stay required by this section shall not preclude the appeals board from inquiring into and determining within a workers’ compensation proceeding whether a lien is stayed pursuant to subdivision (a) or whether a lien claimant is controlled by a physician, practitioner, or provider.”

The next hearing on the motion for preliminary injunction pending in federal court based upon this constitutional issue filed Dr. Eduardo Anguizola, who is facing multiple counts of insurance fraud filed by Orange County prosecutors, is set on this Thursday, September 28, 2017 at 8:30 am in courtroom 9D in downtown Los Angeles. AB 1422  should provide federal Judge Wu with ample authority to deny the request for an injunction now that there is clear language affording stayed lien claimants with “due process” of law.