Menu Close

Author: WorkCompAcademy

Contractors Fined $147K for Safety Violations

WorkCompAcademy

Cal/OSHA has cited three contractors $147,315 for safety violations after investigating the collapse of a temporary mold (formwork) and vertical shoring at an Oakland construction site that sent 13 workers to the hospital.

On May 26, workers at 3039 Broadway, a 435-unit mixed-use project, were pouring concrete into elevated formwork when the shoring system supporting the formwork collapsed. The workers fell some 20 feet along with freshly poured concrete, reinforcing steel, timber framework, and tools and equipment.

Some were able to get to safety on their own and others were assisted by firefighters. When emergency crews arrived, workers were using shovels to dig their colleagues out of the wet concrete.

Oakland Fire Battalion Fire Chief Ian McWhorter, who was still cleaning wet cement off his boots almost four hours later, said earlier the on-site workers “did an excellent job of extricating” their fellow workers before firefighters arrived and took over.

McWhorter said the cement was “kind of like quicksand” and rescuers used plywood and planks to reach trapped workers so they would not sink.

The injured were taken to hospitals for cuts, bruises and strains, but no fatalities or major injuries were reported. One worker’s injuries required surgery.

Cal/OSHA Chief Juliann Sum said that “significant safety lapses caused injuries that could have been much worse if the workers hadn’t landed in freshly poured concrete. Employers must identify, evaluate and correct unsafe working conditions and follow all requirements to prevent employee injuries and illnesses.”

Cal/OSHA’s investigation found that the formwork and vertical shoring system that collapsed were not properly designed, installed or inspected. The agency issued serious and serious accident-related citations to subcontractors Largo Concrete, Inc. and N.M.N. Construction, Inc. for $73,365 and $70,320, respectively, for failure to ensure that the formwork and vertical shoring were designed to safely withstand all intended loads, failure to have calculations and drawings approved by a California registered civil engineer as required for vertical shoring over 14 feet tall, and failure to ensure the shoring supports were erected on a level and stable base. General citations were issued to general contractor Johnstone Moyer, Inc. for $3,630 in proposed penalties.

Cal/OSHA addresses safety requirements for concrete construction and vertical shoring in its Cal/OSHA Pocket Guide for the Construction Industry.

View More

Exclusive Remedy Not Applicable to Employer Assault

WorkCompAcademy

Joung Hyen Lee, Hyen Uk Lee, and Esther Lee are former employees of The Christian Herald, Inc., a corporation they allege is solely owned and was managed by their former boss, Jun Yang.

Joung Hyen Lee was a reporter, while Hyen Uk Lee and Esther Lee were administrative assistants. These three plaintiffs filed suit against Yang and the Herald asserting five wage-and-hour claims. Hyen Uk Lee asserted three additional causes of action (assault and battery and intentional infliction of emotional distress against Yang, and premises liability against the Herald) arising out of alleged physical confrontations with Yang.

As to these claims, Hyen Uk Lee alleged that on two occasions in September 2012, Yang physically attacked her. Specifically, on September 13, 2012, Yang threw a cellular phone at her and grabbed her, causing injury to her arm and body. In addition, on September 20, 2012, Yang pushed Hyen Uk Lee against a door, causing her to hit her head on the corner of the door and lose consciousness. As to the tort claims against Yang, Hyen Uk Lee sought compensatory as well as punitive damages.

Yang argued the tort causes of action, assault and battery, and intentional infliction of emotional distress, failed to state a claim because workers’ compensation is the exclusive remedy for injury sustained in the workplace.

As to the two tort claims, the trial court noted Hyen Uk Lee alleged both incidents occurred in the workplace and concluded “the alleged facts do not fall outside of the scope of the exclusive remedy of the workers’ compensation statute. Nor is there an allegation of lack of workers’ compensation insurance as to these causes of action.”

Plaintiffs appeal from the judgment entered in favor of Yang after the trial court sustained his demurrer to the first amended complaint without leave to amend. The Court of Appeal reversed the judgment in part in the unpublished case of Lee v. Yang.

The Court of Appeal reasoned that “the Labor Code provides an employee may sue his or her employer, notwithstanding the exclusive remedy provision of workers’ compensation, ‘[w]here the employee’s injury – is proximately caused by a willful physical assault by the employer.” (§ 3602, subd. (b)(1); see also Soares v. City of Oakland (1992) 9 Cal.App.4th 1822, 1828 – 1829″

“Here, Hyen Uk Lee alleges that on September 13, 2012, Yang threw a cellular phone at her and grabbed her, causing injury to her arm and body. Hyen Uk Lee further alleges that on September 20, 2012, Yang pushed her against a door, causing her to hit her head on the corner of the door and to then lose consciousness. These allegations are sufficient to survive a demurrer on the cause of action for assault and battery.”

View More

California Officials Publish Cell Phone Health Warning

WorkCompAcademy

The use of cell phones has increased dramatically in recent years, including among children and young adults. These phones put out radio frequency (RF) energy. Some scientists and public health officials believe RF energy may affect human health.

And now Division of Environmental and Occupational Disease Control of the California Department of Public Health has published a guidance document that lists some of the potential health concerns, and provides guidance on how people can reduce their exposure.  And certainly this may be an issue in future workers’ compensation claims based upon the effects of cell phone use.

The scientific community has not reached a consensus on the risks of cell phone use, but the California health department said research suggests long-term, extensive use may affect health. Although the science is still evolving, some laboratory experiments and human health studies have suggested the possibility that long-term, high use of cell phones may be linked to certain types of cancer and other health effects, including:

– brain cancer and tumors of the acoustic nerve (needed for hearing and maintaining balance) and salivary glands
– lower sperm counts and inactive or less mobile sperm
– headaches and effects on learning and memory, hearing, behavior, and sleep

The Guidance Document concludes that “These studies do not establish the link definitely, however, and scientists disagree about whether cell phones cause these health problems and how great the risks might be. This document is intended to provide guidance for those people who want to reduce their own and their families’ exposures to RF energy from cell phones, despite this uncertainty.”

“We know that simple steps, such as not keeping your phone in your pocket and moving it away from your bed at night, can help reduce exposure for both children and adults,” said Dr. Karen Smith, state public health officer. Smart phones emit radio frequency energy when they send signals to and receive them from cell towers.

About 95 percent of Americans own a cell phone, and 12 percent rely on their smart phones for everyday Internet access, the health department said. In addition, the average age when children get their first phone is now just 10, and a majority of young people keep their phones on or near them most of the day and while they sleep. “Children’s brains develop through the teenage years and may be more affected by cell phone use,” Smith said. “Parents should consider reducing the time their children use cell phones and encourage them to turn the devices off at night.”

Other tips for reducing exposure to radio frequency energy from cell phones: Keeping the phone away from the body, reducing cell phone use when the signal is weak, reducing the use of cell phones to stream audio or video or to download or upload large files, keeping the phone away from the bed at night, removing headsets when not on a call, and avoiding products that claim to block radio frequency energy because they may actually increase your exposure.

View More

Healthcare Analytics Market Projects 27.3% Annual Growth

WorkCompAcademy

A new report published by Research and Markets says that the healthcare analytics market is expected to reach $29.84 billion by 2022 up from $8.92 billion in 2017, producing a compound annual growth rate (CAGR) of 27.3%.

Increasing government initiatives to increase EHR adoption, growing pressure to curb healthcare costs, availability of big data in healthcare, increasing venture capital investments, rising focus on improving patient outcomes, and technological advancements are driving the growth of the healthcare analytics market.

On the other hand, factors like the lack of skilled analysts (that limits the use of healthcare solutions), the high cost of these solutions, and operational gaps between payers and providers, are expected to limit the growth of this market to a certain extent.

The healthcare analytics market is segmented into descriptive, predictive, and prescriptive analytics by type.

The prescriptive analytics segment is expected grow at a highest CAGR during the forecast period. The high growth of this segment is attributed to the ability of prescriptive analytics to ensure the synergistic integration of predictions and prescriptions.

Based on application, the healthcare analytics market is segmented into clinical analytics, financial analytics, operational and administrative analytics, and population health analytics.

Financial analytics market is segmented into revenue cycle management; claims processing; payment integrity and fraud, waste, & abuse (FWA); and risk adjustment and risk assessment. Due to the rising focus of payers on the early detection of fraud and reducing preventable costs, the market for fraud analytics is expected to register a significant growth during the forecast period, therefore driving the market for financial analytics.

Based on the component, the healthcare analytics market is segmented into services, software, and hardware.

The services segment accounted for the largest share of the healthcare analytics market in 2016. With the increasing need for business analytics services and the introduction of technologically advanced healthcare analytics software, which requires extensive training to use as well as regular upgrades, the services segment is expected to grow at the highest CAGR during the forecast period.

In 2017, North America is expected to account for the largest share of the market followed by Europe.  Factors such as growing federal healthcare mandates to curb rising healthcare costs and provide quality care; increasing regulatory requirements; growing EHR adoption; and rising government initiatives focusing on personalized medicine, population health management, and value-based reimbursements are expected to drive market growth in North America.

The report provides an overview of the healthcare analytics market. It aims at estimating the market size and future growth potential of this market across different segments such as type, application, component, delivery model, end user, and region.

The report also includes an in-depth competitive analysis of the key players in the market along with their company profiles, recent developments, and key market strategies.

View More

Workers’ Compensation is Highest Risk Sector

WorkCompAcademy

According to a new A.M. Best Co. Inc. special report,the U.S. workers compensation industry experienced more financial impairments during a 17-year period from 2000-2016 than any other property/casualty line of business.

Best defines impairments as being situations in which a company has been placed, via court order, into conservation, rehabilitation and/or insolvent liquidation.

Overall, 354 property/casualty insurers became impaired during the study period.

Supervisory actions undertaken by insurance department regulators without court order were not considered impairments for this study unless delays or limitations were placed on policyholder payments, Best said in a statement.

According to the study, the workers compensation sector accounted for 26% of the impairments; commercial lines insurers represented 22% of the impairments, split between other liability/commercial multi-peril at 15% and commercial auto at 7%; and 23% of impairments were split among specialty lines. The remaining sectors accounted for personal lines.

Specific causal factors were identified for 91 of the impairments, with fraud or alleged fraud the leading cause and present in 23 of the impairments, while 21 impairments related primarily to affiliate problems.

Catastrophe losses, largely in Florida and Texas, were responsible for 18 impairments, while 16 companies suffered impairment after experiencing rapid growth, the according to the statement.

Of the 354 impaired companies during the period, 45% were rated by Best at some point during the period between the date of impairment and three prior year-ends.

The study concludes that there has been a significant decline in the number of impairments that Best has been involved in rating in recent years. From 2007-2016, there were 174 U. S. property/casualty impairments, of which 21% were rated by Best at a point during the period between date of impairment and three prior year-ends, compared with 45% for the 2000-2016 period, according to the statement.

View More

Premium Fraud Discovered After Double Death Claim

WorkCompAcademy

The Riverside County District Attorney’s Office has asked for an arrest warrant against Carlos Valencia, the employer of two men who were fatally electrocuted in March 2016 while pollinating palm trees in Thermal.

A report in the Desert Sun says that an investigation into the deaths of Osvaldo Ceron and Ernesto Hurtado found that Carlos Valencia, owner of Valencia Trimming in La Quinta, misclassified employees to make their jobs appear to be lower risk to his insurance provider and lied about employee pay.

Valencia deprived California’s insurance fund for workers’ compensation of $100,000 and cost the state more than $35,000 in unreported payroll taxes between 2012 and 2017, the arrest declaration says.

The district attorney filed the felony charges against Valencia, 49, on Dec. 7 with a recommended cash bond of $135,000.

Valencia Trimming employees Ceron and Hurtado were electrocuted while pollinating palm trees at 68600 Harrison Ave. in Thermal on March 12, 2016.

The two men were using a truck with a boom. Hurtado was maneuvering the boom when the bucket carrying both men made contact with a power line, according to the DA, shocking them.

Ceron fell from the bucket to the ground, where he was found dead by a third employee. Hurtado remained in the bucket, which caught fire while the group waited for the power company to shut off the power line. He was electrocuted and burned.

According to the DA, Valencia misreported both pay rate and worker classification to the State Compensation Insurance Fund.

SCIF issued Valencia Trimming an insurance policy effective in 2012. But Valencia “reported his payroll under landscaping and not tree trimming,” a classification that lowered Valencia’s insurance rate prior to the deaths of Ceron and Hurtado. Valencia later admitted to SCIF that “no landscaping operations are performed” by his business, according to the DA.

Valencia also underreported employee payroll wages to SCIF and to state tax authorities, the declaration says. For example, Valencia told SCIF investigators after the incident that Hurtado had earned $15,000 annually and that Ceron had earned $11,000 annually, but previously reported to SCIF that his business had no payroll wages during periods when one or both men were employees.

SCIF found that Valencia “never reported any payroll wages” to the Employment Development Department, California’s largest tax collection agency.

View More

LAUSD Teacher Sentenced For Disability Fraud

WorkCompAcademy

A Lake Elsinore woman, who worked as a teacher in the Los Angeles Unified School District, has been ordered to pay more than $92,000 restitution after pleading guilty to insurance fraud.

Sheila Marie Green, DOB: 8-8-69, was sentenced by Riverside County Superior Court Judge Helios Hernandez on Dec. 7, 2017, to eight years in custody – two years in county jail and six years of mandatory supervision. She was also ordered to pay $92,310 in restitution to three insurance companies.

Pursuant to a plea agreement with the DA’s Office, Green pled guilty on Nov. 29, 2017, to two counts of insurance fraud, Penal Code section 550 (a) (5).

During the years 2013 through 2016, while working as a teacher in the Los Angeles Unified School District (LAUSD), Green submitted claims on several disability insurance policies she had obtained that would pay benefits should she be injured and unable to work.

For each claim, Green forged the signature of a payroll employee with the LAUSD on documents stating, fraudulently, that she was not working.

However, an investigation conducted by investigators with the LAUSD and the Riverside County DA’s Office, showed that Green was working while also receiving disability benefits.

During a search of Green’s vehicle, investigators found copies of the documents with the forged payroll employee’s signature as well as paperwork with numerous “practice” signatures of the LAUSD payroll employee.

The case, RIF1605893, was prosecuted by Deputy District Attorney Matthew Roberts of DA’s Insurance Fraud Team.

View More

PhRMA Files Suit to Invalidate SB 17 Drug Law

WorkCompAcademy

The trade group representing U.S. drugmakers said it has a filed a lawsuit to stop California from implementing a law aimed at reining in prescription drug prices.The Pharmaceutical Research and Manufacturers of America (PhRMA) initiated litigation in the United States District Court for the Eastern District of California challenging SB 17, which it alleges is an unprecedented and unconstitutional California law.

SB 17, Hernandez which was signed into law this year, requires pharmaceutical companies to notify health insurers and government health plans at least 60 days before scheduled prescription drug price hikes that would exceed 16 percent over a two-year period and to explain the reasons behind those increases.

In its federal complaint, filed last week, PhRMA argues that SB 17 attempts to dictate national health care policy related to drug prices in violation of the United States Constitution, singles out drug manufacturers as the sole determinant of drug costs despite the significant role many other entities play in the costs patients pay, and will cause market distortions such as drug stockpiling and reduced competition.

PhRMA seeks a declaration from the Court that certain provisions of SB 17 violate the United States Constitution and requests that the Court permanently enjoin the State from implementing or enforcing those provisions of the law. Specifically, the complaint alleges that SB 17 violates:

– the Commerce Clause, which prohibits California from regulating drug pricing beyond the State’s borders;
– the First Amendment, by compelling speech by manufacturers justifying their price changes; and
– the Fourteenth Amendment’s due process clause because the law is unconstitutionally vague.

SB 17 provides that if a manufacturer has increased certain products’ federally defined nationwide list price (wholesale acquisition cost, or WAC) by 16 percent or more cumulatively over the prior two to three calendar years, then that company may not increase the WAC in the current calendar year unless the company first provides registered purchasers and State purchasers with 60 days’ advance notice of the price increase. The WAC is a publicly available national price, not a price specific to California.

PhRMA claims that this law, therefore, expressly saddles the entire country with California’s “misguided drug pricing policy” by imposing restrictions on the national list price of manufacturers’ medicines.

It also alleges that the law also does not address the large rebates and discounts insurance companies and pharmacy benefit managers (PBMs) are receiving and that are not always passed on to patients. Further, the advance notice requirement could incentivize prescription-drug arbitrage by effectively creating a “buying window” for selected entities to stockpile products before price increases go into effect, which in turn could create substantial market distortions.

PhRMA says it recognizes that people have important questions about their medicine costs. That is why PhRMA says it has been convening a conversation called Let’s Talk About Cost that takes a broad look at this complex issue, exploring the slowdown in medicine cost growth, the rising cost of chronic disease, insurance coverage of medicine, the role of middlemen, and what our industry can do to make medicine more affordable for patients.

“In this time of great innovation and advancement in therapies, we understand how important it is for patients to have affordable access to the medicines they need, but SB 17 is not only poorly conceived, it also misses the mark with its myopic focus on manufacturers and provisions that are in clear violation of the Constitution,” said James C. Stansel, PhRMA Executive Vice President and General Counsel. “The law creates bureaucracy, thwarts private market competition, and ignores the role of insurers, pharmacy benefit managers and hospitals in what patients pay for their medicines.”

View More

Jurors Sometimes Sleep During Complex Trials

WorkCompAcademy

The right to a jury trial is a pillar of America’s justice system, enshrined in the Constitution from a tradition dating back more than 1,000 years. But according to a report in the Wall Street Journal, the problem these days is making sure jurors stay awake.

Last week, federal judges in two New York trials – one involving charges of sanctions evasion, the other concerning allegations of corruption in international soccer – dismissed jurors who were dozing off.

In a typical criminal trial, 12 jurors in a boxed area listen for hours at a time to testimony, with a few breaks and a lunch hour. Some trials last several months.

During jury selection, the judge and lawyers interview prospective jurors to find biases, including questions about hobbies, news sources and other topics. Lawyers say they watch for prospects already napping during jury selection. When lawyers see a slumbering juror, “it is a total blow to the ego,” says Sarah Coyne, a former federal prosecutor and now a partner at Weil Gotshal & Manges LLP.

There are no concrete rules for when a judge should dismiss a juror for sleeping. Lawyers say it depends how long they were napping and whether they snoozed through crucial testimony.

In one current trial, Manhattan federal prosecutors are seeking to convince a jury that a Turkish banker is guilty of helping Iran evade U.S. sanctions. The testimony has focused on emails, spreadsheets and wiretapped calls – mostly in Turkish and translated by a live interpreter. The alleged scheme is so complex prosecutors asked one witness to draw the banks and front companies involved on a large sheet of paper. By the end, the witness had drawn a maze of boxes connected by multicolored lines and arrows to indicate the money flow.

One juror was visibly asleep throughout the first week, his head propped in his hand or rolled into his chest. Occasionally, he awoke to sip water or jot notes before resuming his nap. His eyes were closed during much of the government’s most important witness testimony. Late last week, U.S. District Judge Richard Berman dismissed the juror, telling the court he was “really sound asleep – not just dozing.” Judge Berman said when the juror was asked during jury selection what he did in his spare time, the juror said sleep. “He seemed like a very nice fellow,” Judge Berman added.

In Brooklyn federal court last week, U.S. District Judge Pamela Chen addressed a somnolent juror in the trial of three former South American soccer officials accused of corruption. “And as I am speaking to you, you are yawning,” Judge Chen said, telling the juror that he seemed to be asleep and struggling to stay alert. The juror collected his backpack, beanie and glasses and was excused.

Veteran attorneys have strategies to combat lethargy: Ask the judge to take a break before an important witness; place less-exciting testimony in the morning, not during the post-lunch food coma; walk close to the jury box and speak loudly. Judges may make eye contact with a juror next to a sleeper and motion to elbow that person awake. The government and defense are generally careful not to call out a sleeper in open court, to avoid embarrassment and turning the juror against one side.

Former prosecutors say jurors may suffer shock when sitting through a trial for the first time and realizing it is much slower paced than trials on shows such as “Law & Order.” “If you’re a criminal-defense lawyer,” says Joshua Dubin, a New York jury consultant and defense lawyer, “you pray the jurors fall asleep during the government’s case and wake up during the cross-examination.”

View More

DWC to Implement Final Drug Formulary

WorkCompAcademy

The Division of Workers’ Compensation will implement the new evidence based drug formulary for medical providers treating injured workers beginning January 1, 2018, following final approval by the Office of Administrative Law.

The division will also host two informational webinars for interested parties on the formulary implementation on December 13 and 14.

The drug formulary establishes a list of medications to guide appropriate care for injured workers, emphasizing their health outcomes and helping them return to work while reducing administrative burdens and costs. Its guidelines include measures to prevent the overuse of opioids, powerful painkillers that must be carefully monitored when used to treat work-related injuries and illnesses.

The formulary will be part of the Medical Treatment Utilization Schedule (MTUS), which contains guidelines on treatments for injured workers, and is based on medical treatment guidelines created by the American College of Occupational and Environmental Medicine (ACOEM), published by ReedGroup. The formulary adopts a drug list compiled by DWC, with assistance from ReedGroup/ACOEM, and takes into consideration medications frequently prescribed for occupational injuries and the evidence-based drug recommendations in ACOEM’s guidelines.

The final regulations approved by the Office of Administrative Law implement the adoption of an evidence-based drug formulary as mandated by Assembly Bill 1124 and include:

– Provisions for phased-implementation of the formulary in conjunction with the recently updated evidence-based MTUS treatment guidelines.
– A list of drugs classified as either “exempt” or “non-exempt” with respect to the requirement to obtain prospective utilization review before dispensing.
– Ancillary formulary rules, including rules regarding physician dispensing, generic versus brand name drugs, off-label use, special-fill, peri-operative fill, compounded drugs and access to unlisted drugs.
– Provisions relating to the Pharmacy & Therapeutics Committee.

To inform and educate the public about the adoption and implementation of the MTUS drug formulary, DIR will host an informative online webinar next week. The webinar will focus on the formulary’s regulatory framework and explain the rules that apply to the drug list designations, and how the formulary relates to recent updates of the MTUS guidelines. A demonstration by ReedGroup of the online access to the ACOEM materials and information on how workers’ compensation system participants can obtain a license will also be provided during the webinar.

Please register to attend one of the available sessions of the live webinar: Wednesday, December 13, 10 a.m. PST or Thursday, December 14, 2 p.m. PST. Questions and comments can be emailed to formulary@dir.ca.gov for consideration during the webinar. For those unable to attend one of the listed sessions, the recorded webinar will be posted online for later viewing.

DWC’s website will contain resources related to the implementation of the MTUS Drug Formulary, including sign-ups for upcoming webinars, recorded sessions of prior webinars, guidance updates and information on how to apply to become a member of the Pharmacy & Therapeutics Committee. Please check the website on a regular basis for updates.

View More