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Former San Jose Presiding Judge Dies of Natural Causes

The industry is mourning the loss of Andrew Cohen, the former presiding judge of the San Jose office of the Workers’ Compensation Appeals Board. Judge Cohen passed away on Tuesday December 29, of natural causes.

Cohen, 75, earned his B.A. with Honors in Economics from Dartmouth College in 1961. He then graduated from Stanford University Law School in 1968 and then was in a private law practice from 1969 until 1989. He then served as a Worker’s Compensation Judge from 1989 to 1994 and before his retirement he was the Presiding Judge from 1994 until 2003.

He lived in Menlo Park since 1991, and served on the Menlo Park City Council from 2004 to 2012 and was at one time the Menlo Park mayor. He made numerous contributions to city matters with his compassion and influence.

The City Council and staff have fond memories of Judge Cohen. Mayor Rich Cline stated, “I’ve known Andy since 2006, when we first met for a walk at Bayfront Park to discuss the city’s future. He was then and always remained a gentleman with great curiosity and a big heart. He cared deeply about helping those in need and he walked the walk. He led our city to enact many policies that helped folks keep their homes when the market collapsed in 2008 and went above and beyond to seek common ground. This is a very sad day for many of us who grew to know Andy. We are a better community for having had Andy as one of our leaders. Our heartfelt sympathies for Andy’s family during this difficult loss.”

He decided not to run again for City Council at the time of the 2012 election. He told The Daily News he was ready to indulge in more leisurely pursuits but felt pulled by a desire to keep fighting for the issues he feels strongly about, such as creating more housing in the city. In a sign of his internal struggle, Cohen pulled candidate papers on July 17 but returned them blank less than a week later, then returned to City Hall a few days later to get new forms. Early Friday, he sent City Clerk Margaret Roberts an email saying he would not file papers to run again.

At the time Judge Cohen declined to elaborate about his decision other than to say he is looking forward to doing other things for his “personal betterment.”

Former Senator Calderon Corruption Trial Continued for Fifth Time

Former state senator Ronald Calderon is charged with ten counts of mail and wire fraud through the deprivation of honest services (18 U.S.C. §§ 1341, 1343, and 1346), four counts of bribery (18 U.S.C. § 666), one count of conspiracy to commit money laundering (18 U.S.C. § 1956(h), seven counts of money laundering (18 U.S.C. § 1956(a)(1)(B)(i), and two counts of tax fraud (26 U.S.C. § 7206(2). Thomas Calderon, a former state assemblyman, is charged with one count of conspiracy to commit money laundering (18 U.S.C. § 1956(h) and seven counts of money laundering (18 U.S.C. § 1956(a)(1)(B)(i)).

The 28-page indictment filed back in 2014 accuses Ron Calderon of accepting $100,000 in cash bribes, as well as plane trips, gourmet meals and golf resort junkets in exchange for championing laws favorable to those who paid him and fighting laws that could harm them. He is allegedly involved in taking bribes from Michael Drobot to perpetuate an audacious, $500 million Pacific Hospital of Long Beach health care and workers’ compensation fraud, setting up high courtroom drama reminiscent of ABSCAM in the 1970s and ’80s, or ShrimpGate in the 1990s. Drobot has pleaded guilty and agreed to cooperate with investigators.

Ronald is represented by a celebrity lawyer, Mark Geragos. Clients that Geragos has represented include Michael Jackson, actress Winona Ryder,politician Gary Condit, Susan McDougal and Scott Peterson. He was also involved in the Whitewater controversy. Geragos represented suspended NASCAR driver Jeremy Mayfield; Paul and Kulbir Dhaliwal, two brothers injured after a tiger escaped in San Francisco Zoo; and musician Chris Brown, who pleaded guilty in the assault of his then girlfriend Rihanna.

The Calderon case was set for trial on March 1, 2016. Thomas Calderon is currently out of custody on a $25,000 bond and Ronald Calderon is currently out of custody on a $50,000 bond pending trial. The parties estimate that the trial in this matter will last approximately 10 days. The Court has previously continued the trial date four time in this case, most recently from August 11, 2015 to March 1, 2016.

The parties jointly moved for the fifth continuance of the trial date because Geragos said he has five cases scheduled to begin trial over the next two months and needs more time to prepare. U.S. District Judge Christina Snyder granted the motion, and the trial is continued to May 10, 2016 at 9:30 AM.

Since the Drobot arrest, many defendants in addition to Drobot have pleaded guilty and agreed to “fully” cooperate in a wide-ranging federal investigation into the fraud, dubbed “Operation Spinal Cap” by the FBI and other federal authorities. For those who have pleaded guilty, sentencing has not yet occurred. It appears that the sentences are being held over their heads to incentivize “cooperation.” Currently cooperating defendants include orthopedic surgeons Philip Sobol M.D., Mitchell G. Cohen M.D. The Calderons are among the few accused who have not yet entered a guilty plea, been convicted or acquitted.

Santa Clara Correctional Deputy Pleads No Contest to Comp Fraud

A Santa Clara County correctional deputy pleaded no contest Tuesday to workers compensation fraud. Mark Navarrete had previously pleaded not guilty to felony charges of making and presenting a false or fraudulent statement in support of a workers’ compensation claim, but changed his plea Tuesday to no contest,

According to the district attorney, he had faced another charge of making a false statement in support of an insurance claim, which was later dismissed, The deputy faces up to five years in county jail when he is sentenced on Feb. 24,

Navarrete was injured during a softball game on July 14 while he was off the clock and filed a claim that he was injured on the job, A coworker knew the Navarrete was hurt outside of work and notified a supervisor, who then told investigators. Navarrete needed to undergo surgery on his left elbow as a result of the injury. Prosecutors said the case against Navarrete was “very strong.”

The arrest was part of a widening array of internal investigations magnified by the beating death of a mentally ill inmate. The Navarrete case predates the investigation into the deadly Aug. 26 beating of Michael Tyree at the Main Jail, which spurred murder charges against three other correctional deputies and prompted elected officials to promise a host of reforms of the county’s jail facilities, with pointed attention at misconduct by jail staffers.

To date, five correctional deputies — including the three in the Tyree case –have been arrested, and three more are on leave in connection with criminal investigations launched by the Sheriff’s Office based on alleged misconduct. Detectives are reviewing more than 100 complaints — for use of force or otherwise — filed since Tyree died.

Jereh Lubrin, 28, Rafael Rodriguez, 27, and Matthew Farris, 27, have pleaded not guilty to the murder and are scheduled for a preliminary hearing on Feb. 29. All three are free on $1.5 million bail. They also entered not guilty pleas to a second charge of assaulting another inmate, Juan Villa, the same night.

Pandora’s Box Opens – UR Tort Liability Not Preempted by Comp

Kirk King suffered anxiety and depression due to chronic back pain resulting from the back injury at work in 2008. In 2011, he was prescribed an anti-anxiety medication known as Klonopin to be provided through Workers’ Compensation. The request for this medication was sent to UR.

Naresh Sharma, M.D, an anesthesiologist who conducted the utilization review determined the drug was unnecessary and decertified it. As a result, Kirk was required to immediately cease taking the Klonopin. Typically, a person withdraws from Klonopin gradually by slowly reducing the dosage. Due to the sudden cessation of Klonopin, King suffered four seizures, resulting in additional physical injuries.

In September 2013 another request for Klonopin was made by the PTP. Ali, a psychiatrist, conducted a second utilization review and also determined Klonopin was medically unnecessary. Neither Sharma nor Ali examined Kirk in-person, and neither warned Kirk of the dangers of an abrupt withdrawal from Klonopin. Sharma and Ali were employees of CompPartners a Workers’ Compensation utilization review company.

King then sued CompPartners, Inc. and Sharma for (1) professional negligence; (2) negligence; (3) intentional infliction of emotional distress; and (4) negligent infliction of emotional distress. Kirk’s wife, Sara King, sued for loss of consortium. The trial court sustained defendants’ demurrer without leave to amend. The Court of Appeal sustained the demurrer but reversed the denial of leave to amend in the published case of King v. CompPartners Inc.

CompPartners contended the Labor Code set forth a procedure for objecting to a utilization review decision, and that procedure preempted the Kings’ complaint. The Kings contend the trial court erred in sustaining the demurrer because their causes of action are not preempted by the Workers Compensation Act.

“To the extent the Kings are faulting Sharma for not communicating a warning to Kirk, their claims are not preempted by the WCA because that warning would be beyond the “medical necessity” determination made by Sharma. To the extent the Kings are faulting Sharma for incorrectly deciding the medical necessity decision because Klonopin was medically necessary until Kirk was weaned, and thus a particular number of pills, e.g., 10, 20, should have been authorized for weaning, the Kings’ claims are preempted by the WCA because the Kings are directly challenging Sharma’s medical necessity determination.”

Case law provides a utilization review doctor has a doctor-patient relationship with the person whose medical records are being reviewed. Palmer v. Superior Court (2002) 103 Cal.App.4th 953.

The trial court “should have granted the Kings leave to amend because it is possible… that, when more details are provided they could support a conclusion that, under the circumstances, the scope of Sharma’s duty included some form of warning Kirk of or protecting Kirk from the risk of seizures.”

The “Concussion” Movie – Fact or Fiction?

Concussion is a 2015 American biographical sports medical drama film starring Will Smith as Dr. Bennet Omalu, a Nigerian forensic pathologist who published research on the brain damage suffered by professional football players. The film also stars Alec Baldwin, Gugu Mbatha-Raw, and Albert Brooks. Columbia Pictures released the film on December 25, 2015.

According to the story line, in 2002, former Pittsburgh Steelers center Mike Webster was found dead in his pickup truck. Bennet Omalu M.D, a forensic pathologist with the Allegheny County, Pennsylvania coroner’s office, handles Webster’s autopsy, and discovers that he has severe brain damage. He ultimately determines that Webster died as a result of the long-term effects of repeated blows to the head – a disorder he calls chronic traumatic encephalopathy (CTE). CTE has as a biomarker the presence of tau fibers and amyloid plaque in the brain. The idea of an NFL concussion film was inspired by Dr. Bennett Omalu’s later study about former NFL stars Junior Seau and Dave Duerson, both of whom committed suicide after suffering from CTE.

The movie struggles with the tension between Omalu’s studies, and the portrayal of sinister forces seeking to suppress them. The film suggests that CTE is clearly caused by sports head trauma, and that there is no truth in any other theory. It is this suggestion that has spawned hundreds of Workers’ Compensation sports injury claims as well as thousands of civil claims against the NFL.

The film does not depict the considerable conflicting medical evidence about the cause of dementia. Omalu’s findings were rejected by the world’s leading medical experts who met at the 4th International Conference on Concussion in Sport held in Zurich, November 2012. In 2013 its findings were published as a “Consensus Statement” in the British Journal of Sports Medicine (McCrory P, et al. Br J Sports Med 2013; 47:327-330). The article concludes “The speculation that repeated concussion or subconcussive impacts cause CTE remains unproven.”

As moviegoers enjoy the Concussion movie, more studies continue to emerge in the literature about suspected causes of tau fibers and amyloid plaque biomarkers in the brain. The theory de-jure comes from brain scientist Jeffrey Iliff, who works at the Oregon Health & Science University in Portland. He told NPR that sleep is valuable for brain health, particularly because your brain purges amyloid, a toxin linked to Alzheimer’s, overnight, through what’s called the glymphatic system. If the glymphatic system isn’t able to properly clear the brain of amyloid, the researchers posit, it puts a person at a higher risk of Alzheimer’s.

Sleep habits now join a long list of theoretical causes of tau fibers and amyloid plaque. There is published medical literature claiming a relationship between dementia and cerebrovascular disease – cholesterol level – genetics – dental X-Ray exposure – ethno-racial differences – sleep apnea – diabetes type 3 or the metabolic hypothesis and even diacetyl (flavoring in popcorn, beer, and butter) to name a few of the many suspected causes.

It remains to be seen if the concussion hypothesis portrayed in the movie of the same name is fact or fiction.

Apportioning Disability to Loneliness? Is There a Scientific Basis?

California allows apportionment of disability based upon causation. The potential for apportionment using this landmark change in the law has yet to be fully implemented in claim administration. Now a new study just published in the Proceedings of the National Academy of Sciences may lead the way to a new apportionment concept.

Two decades of research indicate causal associations between social relationships and mortality, but important questions remain as to how social relationships affect health, when effects emerge, and how long they last. Drawing on data from four nationally representative longitudinal samples of the US population, researchers from the University of North Carolina, Chapel Hill, and others implemented an innovative life course design to assess the prospective association of both structural and functional dimensions of social relationships (social integration, social support, and social strain) with objectively measured biomarkers of physical health (C-reactive protein, systolic and diastolic blood pressure, waist circumference, and body mass index) within each life stage, including adolescence and young, middle, and late adulthood, and compare such associations across life stages.

The researchers found that a higher degree of social integration was associated with lower risk of physiological dysregulation in a dose – response manner in both early and later life. Conversely, lack of social connections was associated with vastly elevated risk in specific life stages.

For example, social isolation increased the risk of inflammation by the same magnitude as physical inactivity in adolescence, and the effect of social isolation on hypertension exceeded that of clinical risk factors such as diabetes in old age.

Analyses of multiple dimensions of social relationships within multiple samples across the life course produced consistent and robust associations with health. Physiological impacts of structural and functional dimensions of social relationships emerge uniquely in adolescence and midlife and persist into old age.

Thus, according to the researchers “Our study strengthened support for causal linkages between social relationships and physical functioning.”

Fighting Fraud is 2016 Department of Insurance Top Priority

The culmination of the Department of Insurance’s efforts in 2015 resulted in more than $69 million recovered for Californians from consumer complaints and market conduct exams. More than $56 million in grants were awarded to district attorney’s to fight insurance fraud, there was nearly $25 million recovered through lawsuits in which the Department joined whistleblowers to combat health insurance fraud, and more than $200 million obtained by the Department to settle a long standing dispute over a failed insurance company.

The Department also approved first of their kind insurance products for the sharing economy and built new web-based consumer tools to benefit Californians. To help Californians reduce the risk of damage to their homes from an earthquake, $3 million was also obtained in general funding for the California Earthquake Brace + Bolt program.

Fighting fraud continues to be a priority for the Department. Insurance fraud is a multi-billion dollar drain on California’s economy. For fiscal year 2015/2016 the Department awarded $34.95 million in grants to district attorneys to combat workers compensation fraud and more than $21.95 million in grant funding to fight auto and organized auto fraud. As of November 30, Department of Insurance detectives arrested 745 individuals for alleged insurance fraud this year.

In an effort to curb California’s underground economy the department led a statewide multi-agency outreach effort visiting more than 75 businesses to educate business owners about their obligations to comply with insurance, licensing, workplace safety, labor laws and tax codes. This effort resulted in more than 15 citations, multiple stop work orders and nearly $300,000 in fines.

Happy New Year! – Introducing Cross-Industry Medical Fraud

Cross – industry fraud – where healthcare fraud, property/casualty and workers’ compensation fraud intersect – is the next step in identifying potentially bad providers. LexisNexis completed a study that revealed an overlap between providers who commit fraud on the healthcare side and those who do it on the property/casualty side. In addition, there was a greater probability that those providers would be involved in identity theft, tax evasion as well as other criminal activity.

“There was about a 22 percent overlap of seeing the same doctors generally practicing on both the healthcare side and the auto side,” says Todd Fannin, director of claims for LexisNexis Risk Solutions. “Within that data set, about four percent of those had been identified as being potentially bad providers by either property/casualty or healthcare insurers.”

Additional studies seeking to determine the prevalence of cross-industry fraud across the insurance, credit, financial and wider private industry markets have demonstrated how a collaborative approach between industry members can shine a light on previously hidden fraud patterns. In a recent LexisNexis Risk Solutions survey of fraud mitigation professionals, 84 percent of respondents from insurance, health care, government, financial services, communications and retail indicated that they are seeing at least some cross-industry evidence in fraud cases they investigate, and more than three quarters indicated that the impact of fraud that was linked to other industries had a moderate to extremely high financial impact on their organization.

Traditional data analytics tools are limited in that they have focused primarily on data sets that are too narrow. There is therefore a need for fraud mitigation professionals to expand their field of vision. Such an initiative helps organizations detect and intercept fraud before it happens, to safeguard from losses due to fraud. This is significant because traditional “pay-and-chase” models that prioritize recovery over prevention have been exposed as overly costly and less effective than advanced “prevention-based” models that attempt to stop the fraud before it occurs.

The National Health Care Anti-Fraud Association (NHCAA) sponsors the Special Investigation Resource and Intelligence System (SIRIS), where members share information regarding fraud cases they have encountered for the purpose of helping to mitigate fraud elsewhere. The Association was founded in 1985 by several private health insurers and federal and state government officials. It is focused exclusively on the fight against health care fraud. As a private-public partnership – members comprise more than 100 private health insurers and those public-sector law enforcement and regulatory agencies having jurisdiction over health care fraud committed against both private payers and public programs. One mission is serving as a national resource for health care anti-fraud information and professional assistance to government, industry and media.

Is Cell Phone Use Tomorrow’s CT Claim?

When the Centers for Disease Control and Prevention published new guidelines 18 months ago regarding the radiation risk from cellphones, it used unusually bold language on the topic for the American health agency: “We recommend caution in cellphone use.” The agency’s website previously had said that any risks “likely are comparable to other lifestyle choices we make every day.”

But, according to the story in the New York Times, within weeks the C.D.C. reversed course. It no longer recommended caution, and deleted a passage specifically addressing potential risks for children.

Mainstream scientific consensus holds that there is little to no evidence that cellphone signals raise the risk of brain cancer or other health problems. Nevertheless, more than 500 pages of internal records obtained by The New York Times, along with interviews with former agency officials, reveal a debate and some disagreement among scientists and health agencies about what guidance to give as the use of mobile devices skyrockets.

Bernadette Burden, a C.D.C. spokeswoman, said in a statement that the original changes made in June 2014 stemmed from “a C.D.C.-wide effort to make health information for the public easier to understand” but led to confusion that the agency was making a new policy statement. “To correct that misperception and to confirm that C.D.C. had not changed its policy or recommendations, C.D.C. posted a clarification statement,” she said, adding that the cellphone industry did not weigh in before changes were made.

Christopher J. Portier, former director of the National Center for Environmental Health, the C.D.C. division that made the changes, disagreed with the decision to pull back the revised version. “I would not have removed it,” he said in an interview. “I would have been in support of a recommendation that parents look carefully at whether their children need cellphones or not.”

Mr. Portier also served on the International Agency for Research of Cancer, a branch of the World Health Organization that in May 2011 called low-frequency radiation from cellphones and other devices a possible carcinogen. Mr. Portier’s view is not shared by many other experts. While sporadic claims about cellphones and cancer go back several decades, most American organizations echo the Federal Communications Commission, which says radio-frequency energy is not “effectively linked” with “any known health problems.”

John D. Boice Jr., president of the National Council on Radiation Protection and Measurements, said his own research had found “no evidence for associations with brain tumors or any other cancers.”

The European Environment Agency, like some others in Europe, strikes a more cautious tone than American agencies. “Scientific opinion is split on the issue – many different studies have reached different conclusions based on the same evidence,” the European agency says. It advocates “a precautionary approach to policy making in this area.”

The study cited most often is Interphone, a multination review published by the I.A.R.C. in 2010. CTIA, in a statement, noted that Interphone found “over all, no increase in risk.” But Interphone did find “some indications of an increased risk of glioma,” a type of brain tumor, among the heaviest 10 percent of cellphone users, though “the researchers concluded that biases and errors limit the strength of these conclusions and prevent a causal interpretation.”

California workers’ compensation is a liberal system. It will only take time for a few test cases to reach claim departments.

Governor Brown Appoints New Cal/OSHA Deputy Chiefs

Governor Brown has appointed of Debra Lee and Eric Berg as the newest Cal/OSHA Deputy Chiefs. The appointments build on Lee and Berg’s combined 39 years of experience working with Cal/OSHA to strengthen workplace health and safety.

“Governor Brown appointed two of the most experienced and informed Cal/OSHA employees to help guide the division into the future,” said DIR Director Christine Baker. Cal/OSHA, officially known as the Division of Occupational Safety and Health, is a division of DIR.

As Deputy Chief of Safety with Cal/OSHA’s Enforcement Branch, Debra Lee will oversee investigations and inspections of California’s worksites. Her duties will include managing Cal/OSHA’s regular enforcement offices statewide, as well as the specialized Mining and Tunneling, High Hazard and Labor Enforcement Task Force units.

As Deputy Chief of Health, Eric Berg will manage Cal/OSHA’s research and standards activities, including the development of health and safety regulations. He will also oversee Cal/OSHA’s Medical and Toxicology, Asbestos and Carcinogen and Crane units.

The new appointees will serve under the general direction of Cal/OSHA Chief Juliann Sum. “I have worked closely with both Debra Lee and Eric Berg, and have complete confidence in their ability to carry out our critical responsibilities in enforcement, research and standards,” said Chief Sum.

Debra Lee originally joined Cal/OSHA as an industrial hygienist with the High Hazard Unit in 1994. She was promoted several times, most recently to Acting Deputy Chief of Field Enforcement in April 2015. Lee holds a bachelor’s degree in health science from Cal State University Northridge and knew at an early age that she wanted a career protecting working people. She is inspired by Dr. Martin Luther King Jr.’s quote, “All labor has dignity.”

Eric Berg also started his career with Cal/OSHA as an industrial hygienist in 1997. He has served as a safety engineer in multiple units, and was promoted to Acting Deputy Chief of Research and Standards in April 2015. Berg holds a master’s degree in environmental health engineering from University of California, Berkeley, and a bachelor’s in civil engineering from Cal State University Chico. He is also fluent in the Spanish language.