Author: WorkCompAcademy

Back in early 2014 California passed AB 1309 limiting most professional athletes from filing workers’ comp claims within the state.

The fallout was immediate: players from all over the US filed more than 1,000 injury claims, hoping to get treatment and compensation before the September, 2015 deadline. In the first two weeks of September, current and retired players filed 569 claims against NFL franchises, 283 claims against Major League Baseball clubs, 113 against National Hockey League teams and 79 against NBA squads, a Los Angeles Times analysis of state workers’ compensation data found.

And after the September 2015 California deadline, the NFL players needed to find a new venue for their litigation. It may be the state of Florida.

The Miami Harold reports that this month Tony Gaiter along with 141 other former NFL players filed a federal lawsuit in Fort Lauderdale against the league, seeking workers’ compensation benefits for CTE (traumatic brain injury) symptoms. The players contend CTE is an occupational hazard of playing football and should be covered under workers’ compensation.

“Right now, these players are not getting any compensation for their injuries,” said Tim Howard, the attorney representing the group. “There is no reason CTE shouldn’t fall under workers’ compensation.”

The lawsuit names nearly 40 former NFL players, including many who have ties to South Florida. Among the group of plaintiffs listed in the suit: Former Detroit Lions player Sedrick Irvin; former Dallas Cowboys player Kevin Harris; former Washington Redskins player Lawrence Jones; former Tampa Bay Buccaneers player Shevin Smith; and former New England Patriots player Santonio Thomas.

The suit could affect the more than 19,000 retired NFL players who don’t qualify for benefits under the existing settlement.

CTE, or Chronic Traumatic Encephalopathy, is allegedly caused by repeated brain trauma and can lead to memory loss, depression and dementia. The disease can only be diagnosed after someone has died. Autopsies have linked CTE and former NFL players.

Howard maintains that scientific developments have demonstrated that CTE can be diagnosed when someone is alive and begins to show symptoms.

In April 2015, a federal court approved a $1 billion settlement between the NFL and the players, who accused the league of not warning players and hiding the damage of brain injury. Earlier this year, a handful of players rejected the settlement and filed an appeal with the U.S. Supreme Court, contending that some future cases would not be compensated.

The NFL could not be reached for comment.

Howard said the settlement does not compensate players living with CTE or the families of players who died from CTE after July 2014. “This is a way for the players to get justice,” Howard said.

And these claims could not come at a worse time for Florida. On Sept. 27, the Florida Office of Insurance Regulation issued an order that will raise workers compensation rates by 14.5 percent. The hike applies to new and renewing policies, effective Dec. 1.

This change came in response to a recent judgment regarding personal injury trial lawyers and the fees they charge. Under current state law, attorneys are paid 20 percent for the first $5,000 and 15 percent of the next $5,000 of any benefits they help secure. But in April, the state Supreme Court ruled it unconstitutional to cap attorney fees.

California Department of Insurance detectives, assisted by multiple law enforcement agencies, arrested Chris Bathum and Kirsten Wallace on multiple felony counts of grand theft, and identity theft for allegedly conspiring to defraud patients and insurers out of more than $176 million through an elaborate conspiracy. Simultaneously, search warrants were also executed at 15 locations throughout Los Angeles and Orange County.

“Bathum and Wallace’s alleged conspiracy victimized hundreds of people addicted to drugs and alcohol by keeping them in a never-ending cycle of treatment, addiction, and fraud – all the while lining their pockets with millions of dollars from allegedly fraudulent insurance claims,” said Insurance Commissioner Dave Jones.

According to investigators, Bathum, the owner and CEO of Community Recovery of Los Angeles (CRLA) and Wallace, the CFO, are accused of luring vulnerable people addicted to drugs and alcohol to CRLA with a variety of treatment marketing schemes.

The Department of Insurance’s investigation revealed Bathum and Wallace conspired to steal patient identities and buy health insurance policies for patients without their knowledge. After completing treatment, Bathum continued to bill insurance companies for treatment services.

Bathum and Wallace billed health insurance companies more than $176 million in fraudulent claims. The insurers, including Anthem Blue Cross, Blue Shield, Cigna, Health Net and Humana paid approximately $44 million in total before discovering the suspected fraud and stopping claim payments to CRLA.

Additional charges include enhancements for losses greater than $500,000 and for losses greater than $3.2 million.

“This is likely the first wave of indictments and charges in an ongoing investigation into one of the largest health insurance fraud cases in California,” added Jones.

If convicted on all counts, Bathum and Wallace face more than 35 years in prison. Bail was requested at $2 million. Both are likely to be arraigned on November 14, 2016.

This case was investigated by the Department of Insurance and is being prosecuted by Los Angeles District Attorney Jackie Lacey. The Department of Insurance was assisted in the arrests and search warrants by the Los Angeles County District Attorney’s Bureau of Investigations; the Los Angeles County Sheriff’s Department; the Orange County District Attorney’s Bureau of Investigation; and the Department of Health Care Services accompanied detectives to ensure any patients in CRLA facilities are transferred to licensed treatment locations.

The Los Angeles Times reports that In 1998, Tigran Svadjian M.D. purchased the Southwest Medical Group from a man ensnared in a federal medical fraud investigation, according to court records. The man also had suspected ties to Armenian and Russian organized crime.

The man and dozens of other doctors were believed at the time to have overbilled the government at least $13 million for medical tests and procedures at its offices in Burbank, Ventura and San Francisco, news clippings from the time show.

Facing charges of healthcare fraud, Svadjian, a Newport Beach doctor, agreed to go undercover for federal prosecutors. But before he would wear a wire, he told them, he needed to visit his ailing mother in Russia.

He never returned. The day he was to appear in court in 2002, prosecutors received paperwork from a Russian morgue stating that, just a few days before on a Moscow street, Svadjian died of pneumonia. His remains were cremated and given to his mother, Margarita Petrosova.

More than 10 years passed before prosecutors asked a judge to dismiss the charges against Svadjian. In 2013, they discarded the evidence collected against him.The criminal case against Svadjian was over. His estate was divided up among creditors. His wife and children moved on with efforts to rebuild their lives.

But unbeknownst at the time, he actually ended up in the Egyptian town of Hurghada that had blossomed from a once-quiet fishing village stretching along the Red Sea to a beach resort that drew tourists with immaculate hotels and charming night life.

It was there, in late 2002, that Vasily Petrosov found a home and began earning a living as a part-time scuba instructor. He fell in love with a woman from Sochi, Russia, a resort city on the coast of the Black Sea. In 2012, the couple had their first child, a son. Things were looking up for Petrosov and by the end of last year, he expected a second child.

But this would be a difficult pregnancy, and would require a caesarean procedure. Petrosov’s girlfriend flew back to her hometown, where the medical care would be better. There she would wait for him.

Petrosov did not have a passport. The one he had was fake, and authorities seized it when he tried to renew it in Russia years before. Petrosov contacted a Lithuanian friend in Hurghada and purchased another fake passport. Petrosov became Viktoras Cajevkis. A Lithuanian. Armed with his passport and other documents, Cajevkis left Egypt for Russia – with a stop in the Ukraine.

But authorities in Kiev soon realized his passport was fraudulent and sent him back to Hurghada, where Egyptian police arrested him on July 31. Determined to find out who he really was, they searched his apartment, which yielded a canceled American passport with another name. Tigran Svadjian.

Svadjian now sits in a federal holding cell in downtown L.A, where he faces only a single charge of unlawful flight to avoid prosecution, which carries a maximum five-year sentence – half what he faced before he vanished. Prosecutors said they expect to reach a plea agreement with Svadjian by mid-November and won’t prosecute him on the old, and much more serious, Medi-Cal fraud charges.

While Svadjian was abroad, the state Department of Health and Human Services sought a judge’s order to allow them to take his family’s home in a gated Newport Beach neighborhood. The state gave up its fight in 2005 and a year later, Emilya Svadjian divided her ex-husband’s $63,000 in assets among the family. Her claim on his life insurance was rejected.

But the FBI said she managed to empty out a Swiss bank account Svadjian maintained with $3 million.

Robert Gaona claimed industrial injury. He was evaluated by Dr. Sherry Mendelson, the agreed medical evaluator, who opined that he should be evaluated by a chronic pain specialist and recommended Dr. Lawrence R. Miller. Dr. Miller recommended “24 hours 7-day a week home care assistance.” His report was sent to Dr. Mendelson, who accepted his opinion and recommended that 24/7 care be provided.

Capital Builders later objected to the admissibility of Dr. Miller’s report. It then filed a petition to strike Dr. Mendelson’s reports and remove her as the AME in psychiatry pursuant to section 4062.3, subdivision (g). The petition alleged that there was no agreement to provide Dr. Miller’s report to the AME and that sending Dr. Miller’s report to Dr. Mendelson was an improper ex parte communication.

The WCJ denied Capital Builders’s petition to strike “without prejudice.”

Capital Builders petitioned for removal or in the alternative for reconsideration. The appeals board found the WCJ’s decision to be an interlocutory procedural order that was not a final order and was therefore not the proper subject of a petition for reconsideration. The appeals board thus dismissed the petition for reconsideration. The appeals board also found that Capital Builders did not show substantial prejudice or irreparable harm and therefore denied the removal petition.

The Court of Appeal issued a writ of review on July 18, 2016. Simultaneously, it requested briefing on whether the appeals board’s decision was a final order, whether the appeals board’s decision is reviewable by way of a writ of review, and whether the Alvarez decision’s implied conclusion regarding reviewability was correct.

The appeals board responded by underscoring that the WCJ’s order was “‘without prejudice,’” supporting the conclusion that it was an interim procedural decision. Gaona replied by agreeing that the WCJ’s order was an “interim procedural discovery order that ha[d] no impact on the rights and liabilities of either party . . . .”

Capital Builders filed a reply contending that all decisions of the appeals board are subject to review by the appellate courts.

The Court of Appeal agreed that the ruling was not a final order and not subject to appeal,and dismissed the petition for writ of review in the published case of Capitol Builders Hardware v WCAB (Gaona).

Principally, because workers’ compensation proceedings are to be expeditious, inexpensive, and “‘without encumbrance of any character,’” certain threshold issues, if finally determined, qualify as final orders. (Safeway, supra, 104 Cal.App.3d at p. 533.) Examples of threshold issues are whether the injury arises out of and in the course of employment, the territorial jurisdiction of the appeals board, the existence of an employment relationship or statute of limitations issues. (Safeway, supra, at p. 533 & fn. 4.) Such issues, if finally determined, “may avoid the necessity of further litigation” (Id. at p. 534) and hence render workers’ compensation litigation more expeditious and inexpensive.

The appeals board dismissed the petition for reconsideration and denied the petition for removal. Because these orders leave issues for future consideration (Lyon v. Goss (1942) 19 Cal.2d 659, 670), under the usual understanding of the concept of a final judgment or order, they are not final. (Maranian, supra, 81 Cal.App.4th at p. 1075.)

These orders also do not qualify as orders finally disposing of threshold issues in workers’ compensation practice. The underlying issue, i.e., whether the communication was or was not ex parte and therefore prohibited by subdivision (g) of section 4062.3, will not avoid the necessity of further litigation.

The Department of Industrial Relations (DIR) and its Division of Workers’ Compensation (DWC) posted a progress report today on the department’s continuing implementation of Independent Medical Review (IMR). IMR is the medical dispute resolution process that uses medical expertise to obtain consistent, evidence-based decisions and is one of the most important components of Senate Bill 863, Governor Brown’s landmark 2012 workers’ compensation reform.

“Independent Medical Review replaced a broken system where injured workers had to wait months for medical treatment while disputes over their care were litigated in court,” said California Labor and Workforce Development Agency Secretary David M. Lanier. “It’s encouraging to see the marked improvements in the timeliness of IMR decisions as a result of the state’s ongoing efforts to improve the system.”

The 2016 Independent Medical Review (IMR) Report charts the progress of IMR following its successful implementation in July 2013. In the second and third year of IMR, DIR and DWC took steps to reduce the average number of days to complete IMRs (from 56 days in late 2014 to 10 days by mid-2015), made enhancements to the program, and began to collect and analyze data to improve evidence-based medical decisions and outcomes for injured workers.

“The report shows IMR is working as intended,” said Christine Baker, Director of the Department of Industrial Relations (DIR). “There is an effective process to support appropriate care and stop inappropriate care. The data is showing where further improvements are needed, particularly regarding medical treatment guidelines and education, and we will continue to make adjustments.” Highlights of the report include the following:

System improvements: Working with IMR vendor Maximus, DIR has prioritized electronic filing of medical records, which led to faster resolutions of cases being reviewed and decided. Refinements in the data reporting also helped track disputed issues. DWC created a searchable database where it posts IMR decisions on its website. IMR application fees were reduced for cases that contain only pharmacy-related issues.

Who files for IMR: More than a quarter of IMR cases are filed in Los Angeles, with the Bay Area second with about 20 percent of the state total. Most injured workers with an IMR case are represented by an attorney. Ratios of case outcomes were almost identical for represented and unrepresented injured workers, with more than 80 percent of items and services deemed medically unnecessary by utilization review decision being upheld by IMR reviewers. The rate of treatment disputes overturned is between 9 and 11 percent.

What is in dispute: Pharmaceuticals were the most common treatment category in dispute (49 percent in 2015), with requests for rehabilitation services a distant second. The most requested drugs were opioids.

Further refinements: DWC is revising the IMR regulations to require electronic filing of applications and medical records, which will ensure the timeliness of decisions. The division has also launched an online physician continuing education course to improve understanding of the medical treatment utilization schedule (MTUS) and the IMR and utilization review (UR) processes.

“We continue to evaluate IMR decisions to ensure optimal care for patients, particularly with opioids,” said DWC Executive Medical Director Dr. Raymond Meister. “Helping physicians understand and follow the MTUS will improve results for injured workers.”