Author: WorkCompAcademy

John D. Warbritton III, M.D has been an orthopedic surgeon in Oakland since 1986. He is a graduate of Harvard Medical School and a Diplomate of American Board of Orthopaedic Surgery and a fellow of the American Board of Orthopaedic Surgery and the American Academy of Orthopaedic Surgeons.

He became a Qualified Medical Examiner in 1992, its’ inaugural year. Until his federal suspension order, he maintained an active practice treating injured workers and had authored hundreds of medical-legal evaluations each year. He was Chairman of the Department of Orthopedic Surgery at Alta Bates Summit Medical Center in Oakland from January 2003 to January 2009.

In 2007, Dr. Warbritton started Warbritton & Associates Impairment Rating Specialists, which provides medical legal evaluations from specialists in a growing number of fields.

His medical practice has now, at least temporarily, come to a halt when Dr. Warbritton represented by counsel appeared for an arraignment on a federal criminal Indictment on October 18, 2016 in case CR 16-00423 CRB BZ pending in the United States District Court, Northern District of California. As the defendant in that case he “agreed to not engage in the practice of medicine, which includes seeing patients and reviewing medical records”. The parties stipulated, and the Court entered the Order that “John David Warbritton, III, M.D., is prohibited from practicing medicine in any manner, during the pendency of the above-captioned criminal proceeding. This Order shall remain in effect until the conclusion of this criminal proceeding or further order of the Court.”

And on November 21, Kamala Harris acting in her capacity as California Attorney General filed an Accusation against Dr. Warbritton seeking to revoke or suspend his license to practice medicine.

According to the allegations of her Accusation, Dr. Warbritton is subject to disciplinary action under Business and Professions Code sections 2234 (a) and (f) for unprofessional conduct and Section 726 in that he in engaged in sexual misconduct while evaluating two patients.

The allegations claim specific acts of sexual misconduct while evaluating two different women who were referred for medical examinations by industrial insurance companies starting in 2008. The alleged conduct includes, in detail, oral comments as well as physical gestures that were inappropriate if not illegal.

However the allegations of the federal criminal indictment add another more sinister layer to allegations Dr. Warbritton will be defending. Federal authorities allege that “On or about March 27, 2016, in the Northern District of California, the defendant, JOHN DAVID WARBRITTON, III, knowingly transported any child pornography, as defined in Title 18, United States Code, Section 2256(8), using any means and facility of interstate and foreign commerce and in or affecting interstate and foreign commerce by any means, including by computer, in violation of 18 U.S.C. § 2252A(a)(l) 24 and (b).”

University of Colorado Boulder researchers have discovered a brain signature that identifies fibromyalgia sufferers with 93 percent accuracy, a potential breakthrough for future clinical diagnosis and treatment of the highly prevalent condition.

Traumatic injuries are alleged to be the causative element in many fibromyalgia workers’ compensation claims. It is commonly defined as chronic widespread musculoskeletal pain accompanied by symptoms such as fatigue, anxiety and mood disorders. The Centers for Disease Control and Prevention (CDC) estimates that fibromyalgia affects more than five million adults annually in the U.S., with significantly higher occurrence rates in women than in men.

Historically, fibromyalgia has been difficult to diagnose and treat due to a lack of a well-categorized tissue pathology and symptoms that overlap with other common chronic illnesses. Now there may be a new tool to help claim administrators evaluate fibromyalgia cases.

CU Boulder researchers used functional MRI scans (fMRI) to study brain activity in a group of 37 fibromyalgia patients and 35 control patients as they were exposed to a variety of non-painful visual, auditory and tactile cues as well as painful pressure.

The multisensory testing allowed the researchers to identify a series of three sub-markers, or neurological patterns, that correlated with the hypersensitivity to pain that characterizes fibromyalgia.

“The novelty of this study is that it provides potential neuroimaging-based tools that can be used with new patients to inform about the degree of certain neural pathology underlying their pain symptoms,” said Marina López-Solà, a post-doctoral researcher in CU Boulder’s Cognitive and Affective Control Laboratory and lead author of the new study. “The set of tools may be helpful to identify patient subtypes, which may be important for adjusting treatment selection on an individualized basis.”

The findings were recently published in the journal PAIN, published by the International Association for the Study of Pain.

“Though many pain specialists have established clinical procedures for diagnosing fibromyalgia, the clinical label does not explain what is happening neurologically and it does not reflect the full individuality of patients’ suffering,” said Tor Wager, director of the Cognitive and Affective Control Laboratory. “The potential for brain measures like the ones we developed here is that they can tell us something about the particular brain abnormalities that drive an individual’s suffering. That can help us both recognize fibromyalgia for what it is — a disorder of the central nervous system — and treat it more effectively.”

If replicated and expanded upon in future studies, the results could eventually provide a neurological road map to brain activity that would inform diagnosis and therapeutic interventions for fibromyalgia.

“This is a helpful first step that builds off of other important previous work and is a natural step in the evolution of our understanding of fibromyalgia as a brain disorder” said López-Solà.

The California Department of Insurance announced that the enforcement action taken against Zenefits for multiple insurance broker license violations has resulted in a $7 million penalty.

Zenefits was charged with allowing unlicensed employees to transact insurance and circumventing insurance agent education requirements. This is the largest penalty assessed by any commissioner against Zenefits and one of the largest penalties for licensing violations ever assessed in the department’s history.

A 2013 start-up, Zenefits is a San Francisco based company whose business model was to provide online HR services to businesses and then encourage those same businesses to use Zenefits as an insurance broker.

The California Department of Insurance launched an investigation in 2015, after receiving complaints that Zenefits employees were transacting insurance without a license. Shortly after the investigation into Zenefits’ business practices and compliance began, the company announced publicly that they were not complying with insurance laws and regulations, which was followed by the resignation of Zenefits’ CEO, Parker Conrad.

The California Department of Insurance ultimately claimed in its Order to Show Cause that “From January 2014, through November 2015, Respondent employed individuals within and outside of California who solicited, negotiated and sold insurance policies to customers located in California. According to Respondent’s June 1, 2016 report, its employees sold 8,118 insurance policies to California consumers during the aforementioned time period. Of this total, at least 1,994 insurance policies were sold by employees who lacked the proper license required to transact insurance pursuant to CIC section 1631.”

The settlement agreement obtained by the insurance commissioner includes a $3 million penalty for licensing violations, including allowing unlicensed employees to transact insurance, a $4 million penalty for subverting the pre-licensing education and study-hour requirements for agent and broker licensing, and a $160,000 payment to reimburse the Department of Insurance for investigation and examination expenses.

In recognition of the self-reporting and remedial actions already implemented by the company, including the replacement of the former CEO, retraining of all licensed producers, and implementation of an automated process to verify that only licensed individuals solicit and sell insurance products, the settlement provides that half of the total $7 million in monetary penalties are suspended.

The suspended portion of the monetary penalty will be reinstated if Zenefits fails to confirm continued compliance with licensing and regulatory mandates based on an examination of the company’s business practices to be conducted in 2018.

Zenefits has been investigated and fined in other states for similar compliance issues, including Texas, Massachusetts, Tennessee and Washington. In July Zenefits reached a settlement with the Tennessee Department of Insurance and Commerce, agreeing to pay a fine of $62,500. And the Texas insurance regulators have fined Zenefits, $550,000 for its past use of unlicensed health insurance brokers.

A coalition of 21 state attorneys general and governors successfully sued to block the Obama administration’s overtime rule which was set to go into effect December 1.

Nevada attorney general Adam Laxalt, in partnership with 20 other state attorneys general and governors, had sued to stop it, and the group was granted a preliminary injunction; now, the rule will not be implemented as litigation continues. Unless the Department of Labor engages in an unusually aggressive effort to expedite the response to Mazzant’s ruling, the litigation is likely to outlast the Obama administration – and, under a Trump administration, one can assume that Department of Labor officials will drop the litigation or roll back the rule.

The rule would have forced both public- and private-sector employers to pay time-and-a-half overtime to any hourly employees earning less than $47,476 per year, nearly double the old threshold of $23,660. Employees earning less than the threshold but performing “executive, administrative, or professional” duties were previously exempt from the DOL’s overtime requirements, but the new rule mandates that they receive time-and-half pay for extra work, too.

In so doing, it directly overrides the exemptions outlined by Congress in the Fair Labor Standards Act. In addition to modifying the threshold and eliminating the white-collar exemption, the Obama administration created an algorithmic method to automatically update the salary threshold every three years based on wage growth and other factors. Laxalt calls this algorithm “ratcheting,” and it is a significant component of his lawsuit.

Laxalt and his coalition sued the Department of Labor on the grounds that the overtime rule overrode congressional authority by omitting white-collar exemptions; it violated the Tenth Amendment by forcing states to pay employees a specific salary, indirectly controlling state budgets; and it violated the Administrative Procedure Act by ratcheting up the salary threshold every three years.

The Judge, Amos L. Mazzant III of the Eastern District of Texas, ruled that the Obama administration had exceeded its authority by raising the overtime salary limit so significantly. The ruling was hailed by business groups who argued the new rules would be costly and result in fewer hours for workers.

The Labor Department said it “strongly disagreed” with the decision and was “considering all of our legal options,” raising the possibility of an appeal. Ross Eisenbrey of the Economic Policy Institute, whose writings on the subject helped shape the administration’s regulation, called the ruling “a disappointment to millions of workers who are forced to work long hours with no extra compensation.”

While the injunction is only a temporary measure that suspends the regulation until the judge can issue a ruling on the merits, many said the judge’s language indicated he was likely to strike down the regulation.

“We are, assuming that this preliminary injunction holds and there isn’t an appeal or some other thing that disrupts it, done with this regulation,” said Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, which had challenged the rule.

Rebecca Gage applied for service-connected disability retirement with the Sacramento County Employees’ Retirement System (SCERS) on March 6, 2015. She requested section 4850.4 advance disability pension payments until her pension application was processed.

On June 29, the County informed Gage that her request for advance disability pension payments had been approved and the benefits were to commence effective May 8. The next day, Gage filed a petition for penalties for an unreasonable delay, noting the County had indicated the benefit check would not be sent until July 2 and Gage would not receive it until July 3 or 4.

The matter proceeded to trial. The issue was limited to whether section 5814 penalties were an appropriate remedy if the County failed to comply with the requirements of section 4850.4.

The WCJ found section 4850.4 advanced disability pension payments were “compensation” under section 3207 and therefore section 5814 penalties applied in the case of an unreasonable delay.

The WCAB granted reconsideration and reversed the order. It found that because advance disability retirement payments were not equivalent to regular workers’ compensation benefits, but are instead obligations of the applicable retirement system, a denial or delay in the payment of these benefits was not subject to a section 5814 penalty. One board member dissented, opining that section 4850.4 benefits fell within the clear statutory definition of compensation in section 3207. The County had the obligation to pay that compensation and the WCAB had jurisdiction to enforce that payment through the penalty provision of section 5814.

The Court of Appeal annulled the Order after Reconsideration and found jurisdiction to award the requested penalties in the unpublished case of Gage v WCAB and County of Sacramento.

The Court of Appeal concluded that “the Workers’ Compensation Appeals Board (WCAB) does indeed have jurisdiction to impose penalties under Labor Code section 5814 for the unreasonable delay or denial of advance disability pension payments, available under section 4850.4 to local peace officers who are disabled on the job” because: (1) such payments qualify as compensation under section 3207; (2) section 5814 penalties are available for unreasonable delay or denial of the payment of compensation; and (3) no other provision of the Labor Code evinces a legislative intent to exclude such payments from the penalty provisions of section 5814.

In 2002, the Legislature made these advance disability retirement payments mandatory. (Stats. 2002, ch. 189, § 1.) The county “shall make advanced disability pension payments in accordance with Section 4850.3 unless” a “physician determines that there no discernible injury to, or illness of, the employee,” the “employee was incontrovertibly outside the course of his or her employment duties when the injury occurred,” or there is proof of fraud. (§ 4850.4, subd. (a)).

The employer is required to make advanced disability payments if the employee files a timely application for disability retirement and fully cooperates in providing information and with the medical examination and evaluation process. The payments shall commence no later than 30 days after the latest of the employee’s last payment of wages or salary, benefits under section 4850, or sick leave.

“Compensation” under division 4 “includes every benefit or payment conferred by this division upon an injured employee, or in the event of his or her death, upon his or her dependents, without regard to negligence.” (§ 3207.) ‘The term “compensation” is a technical one and includes all payments conferred by the act upon an injured employee.

The WCAB may impose penalties where payment of compensation is denied or unreasonably delayed.