Author: WorkCompAcademy

Scott McCartney was diagnosed with actinic keratosis in October 2013. In his June 2014 application for workers’ compensation benefits, he alleged that this injury arose out of the course of his employment as a deputy Sheriff for the County of Sacramento.

The County requested that he submit to the QME (a dermatologist) for an evaluation. The QME noted that McCartney had been a surfer/body surfer growing up in Southern California. He described his skin as burning easily, and he had experienced blistering sunburns. During most of his 21 years working for the County, he was on motorcycle patrol, with his arms and face exposed to UV radiation (though he had used sunscreen from 1991 on). In his leisure time, he also was active outdoors with sports, exercise, and golf. At the time of the QME examination, the County had contracted his services to the City of Rancho Cordova, where he was out of doors 70 percent of the time. In 2013, he began noticing scabbed and crusty red lesions on his face and arms; a biopsy showed these to be actinic keratosis, which is not itself a form of cancer.

The QME could not find any documented support for a 51 percent certainty linking the on-job sun exposure to the manifestation of the skin condition, because medical literature had not identified any particular dosage of sunlight as triggering it. Therefore, attributing the skin condition to any contribution from workplace sunlight – as opposed to the sun exposure McCartney received throughout his life or during his pursuit of outdoor activities in his leisure time – would simply be pure speculation.

At the deposition the QME testified that sunlight is but one of the factors leading to development of these lesions, which also include aging, genetics, and the responses of the immune system.

After a trial, the WCJ found that work-related sun exposure was not proven to be a contributing factor to McCartney’s condition by a reasonable medical probability. On reconsideration the WCAB reversed and amended the Order finding the McCartney had suffered an industrial injury, and that the QME applied the wrong legal standard.

The Court of Appeal reversed the WCAB finding that McCartney did not suffer the industrial injury he alleged in the unpublished case of County of Sacramento v WCAB (McCartney).

On appeal, McCartney argued that the recent case of South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291 (South Coast) compelled a finding of injury.

In South Coast, the decedent was taking three drugs as a result of an injury on the job; his personal physician prescribed two other drugs for anxiety and sleeplessness. He was found dead of respiratory failure with all five of the drugs present in his system, the autopsy attributing the cause to the synergistic effect of the medications and early stages of pneumonia. One physician concluded the drugs separately and in combination could cause respiratory depression or arrest.

The Court of Appeal held that “the present case is distinguishable” from South Coast.

“Both respondents (McCartney and the WCAB) misapprehend the QME testimony. The QME never acknowledged that there was a causative role of unknown degree arising out of McCartney’s employment. Rather, she took great pains to explain (repeatedly) that it was not possible to attribute the cause of McCartney’s condition to any particular period of exposure to the sun, and therefore it was nothing more than speculation to identify the work-related exposure as a contributing cause.”

The Santa Barbara County District Attorney’s office has confirmed to reporters at news station KEYT that Dr. Richard Scheinberg, an orthopedic surgeon with offices in Santa Barbara, Oxnard, Santa Maria and Bakersfield, is “under investigation.”

However, officials would not say why.

A NewsChannel 3 crew visited Scheinberg’s office at 401 Chapala St., Ste. 102 near the end of June, and saw at least a handful of plainclothes detectives coming into and out of the building “all day long.” They were removing boxes of what appeared to be files. A posted sign directed patients to reschedule their appointments with Dr. Scheinberg.

The Scheinberg Orthopedic Group’s website states that he is a board-certified orthopedic surgeon with more than 30 years of experience. He is currently on staff at Santa Barbara Cottage Hospital, the Pueblo Surgery Center and Carrillo Surgery Center. He also claims to have treated many professional athletes, including tennis players Jimmy Connors, Maria Sharapova, Andre Agassi and Patrick Rafter.

Public court records shed some light on his medical business interests. He and his former wife, Celeste, had less than a friendly divorce. According to a Court of Appeal unpublished opinion, they separated in December 2009, and Celeste petitioned for dissolution. During the marriage, the parties lived on income from Richard’s three corporations: Richard D. Scheinberg, M.D., Inc., Pueblo Surgery Center, Inc., and Oxnard Industrial Physical Therapy, Inc. Celeste provided bookkeeping and billing services for these businesses.

In April 2010, they stipulated to a judgment which provided Celeste $8 million in cash as her portion of the community estate. And monthly spousal support of $12,500, child support of $10,000 monthly, and the opportunity to continue as Richard’s medical biller with income of at least $30,000 per month. It provided that if her billing income fell below $30,000 for two consecutive months, Celeste could request modification of spousal support.

When Celeste’s billing income fell below the agreed-upon level, Celeste moved the Court for modification of her spousal support and sought damages for breach of contract. Richard moved to terminate her employment contract, among other things. A mediation of these disputes in August 2012 resulted in a settlement agreement in which the parties terminated their employment relationship. Richard agreed to pay Celeste a lump sum spousal support payment of $1.6 million, in exchange for a waiver of further spousal support.

But that was not the end of their litigation. The parties went on to dispute the proceeds of an IRS refund check in the amount of $419,009.23, payable to Celeste. That dispute was resolved by the 2014 unpublished Court of Appeal opinion.

Scheinberg is a 1975 graduate of Duke University School of Medicine, and has been licensed as a physician and surgeon in California since 1980.

Anyone with relevant information about Dr. Scheinberg’s practice is asked to call John Savrnoch with the Santa Barbara County District Attorney’s Office at (805) 568-2300.

Time will tell if the investigation will lead to a prosecution for some reason, or to nothing at all.

Walmart Stores Inc. operates over 290 retail stores in California; approximately 283 of these locations have pharmacies.

U.S. Attorney Phillip A. Talbert announced that the company has agreed to pay $1.65 million to resolve allegations that it violated the federal False Claims Act when it knowingly submitted claims for reimbursement to California’s Medi-Cal program that were not supported by applicable diagnosis and documentation requirements.

“These Medi-Cal regulations are essential to protect both patients and limited heath care funding,” said U.S. Attorney Talbert. “My office will continue to hold pharmacies accountable when they fail to comply with regulations like these.”

Medi-Cal utilizes a formulary list, commonly known as “Code 1” drugs, which designates certain restrictions for each listed drug, including restrictions pertaining to diagnoses. Medi-Cal will reimburse certain Code 1 drugs only for approved diagnoses, taking into account criteria such as the drug’s safety, efficacy, misuse potential, and cost.

Pharmacies serve the critical gatekeeping function of confirming and certifying that these Code 1 drugs are dispensed for the approved diagnoses. Walmart may bill for drugs prescribed outside of the approved diagnoses only if it submits a request to DHCS that includes a justification for the non-approved use.

The current settlement resolves allegations that Walmart failed to confirm and document the requisite diagnoses, and in some instances dispensed drugs for non-approved diagnoses, then knowingly billed Medi-Cal for these prescriptions.

The allegations resolved by this settlement were first raised in a lawsuit filed against Walmart under the qui tam, or whistleblower, provisions of the False Claims Act by a pharmacist who has worked at Walmart locations in the greater Sacramento area. The False Claims Act allows private citizens with knowledge of fraud to bring civil actions on behalf of the government and to share in any recovery. The whistleblower in this matter will receive approximately $264,000 of the recovery proceeds.

This settlement is the result of a joint effort by the United States Attorney’s Office for the Eastern District of California and California’s Bureau of Medicaid Fraud and Elder Abuse. Assistant U.S. Attorney Catherine J. Swann handled the matter for the United States, with assistance from the Department of Health and Human Services, Office of Inspector General, and the Federal Bureau of Investigation. The claims settled by this agreement are allegations only, and there has been no determination of liability.

Last May Talbert announced that Walmart competitor Walgreen Co. paid $9.86 million to resolve similar allegations. Walgreens is one of the largest drugstore chains in the United States, operating approximately 630 stores in California.

The allegations resolved by Walgreen settlement were first raised in two lawsuits filed against Walgreens also under the qui tam, or whistleblower, provisions of the False Claims Act by a former Walgreens pharmacist and a former pharmacy technician. The whistleblowers in the Walgreen case will collectively receive approximately $2.3 million of the recovery proceeds.

In February 2010 Jack Baker slipped on some tools in a walkway while working as a diesel mechanic for Sierra Pacific and insured by State Compensation. He injured his right knee, neck, left shoulder, and psyche, and received medical treatment.

The PTP prescribed the drugs Pennsaid and Norco for Baker in February 2014. UR timely denied the RFA for these drugs on March 12. Baker appealed the UR denial through an IMR by filing an application on March 19, 2014. Maximus did not assign the matter to IMR until June 23, 2014.

After the matter was assigned to IMR, both Baker and Sierra Pacific promptly submitted medical information to Maximus. Maximus issued its final decision on July 21, 2014, finding the prescriptions for Norco and Pennsaid not medically necessary or appropriate.

Baker filed a petition appealing the director’s IMR on August 19, 2014. A hearing followed on November 5, 2014. The WCJ in its findings determined: “In this case the delay of 96 days to assign this matter is unreasonable. As the designee of the [director], Maximus’ delay resulted in an act in excess of her powers.” The WCJ continued, “Applicant’s appeal from IMR is granted. He is entitled to a new IMR.” The WCJ ordered the matter remanded to the director for the conduct of a new IMR.

The WCAB granted the appeal on November 26, 2014, finding Baker’s remedy was a new IMR pursuant to section 4610.6, subdivision (i): “Although this seems like a somewhat futile act, in that the substantive decision by IMR was not plainly errant to a lay person, that is the remedy provided by the applicable law.”

Maximus issued a final determination after the second IMR on February 4, 2015, and upheld the UR denial for the authorization of the medications. Baker again appealed the IMR decision. The WCJ concluded that since this is a matter of conflicting medical opinions applicant has not met his standard of proof for his appeal. The WCJ did not discuss the timeliness of the decision.

Baker filed a petition for reconsideration which the WCAB granted. In its decision after reconsideration, the WCAB determined the time periods set forth in section 4610.6, subdivision (d), are directory not mandatory and failure to meet the time limits did not invalidate the IMR process. The Court of Appeal affirmed in the unpublished case of Baker v WCAB.

The 3rd District Court of Appeal noted that in the recent 2nd District case of State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd.(Magaris) (2016) 248 Cal.App.4th 349, 359 “the appellate court explored this very issue.” Where a government action is mandatory in the obligatory-permissive sense and the government fails to act, the government can be compelled (i.e., mandated) to act in accordance with the statute. But where a government action is mandatory in the mandatory-directory sense and the government fails to act, it effectively loses jurisdiction to act in accordance with the statute.

It concluded “we agree with the Margaris court’s assessment.” The absence of a penalty or consequence for the failure to comply with the 30-day time limit, coupled with the limited grounds for appeal, indicate that the Legislature did not intend to divest the director of jurisdiction to issue an IMR determination after the 30-day window expires.

Endo International just took its extended-release opioid painkiller Opana ER (otherwise known as oxymorphone hydrochloride) off the market.

According to the story in Business Insider, the move comes almost a month after the Food and Drug Administration asked that the drug be removed when it found that the drug’s benefits no longer outweighed its risk for abuse.

“We are facing an opioid epidemic – a public health crisis, and we must take all necessary steps to reduce the scope of opioid misuse and abuse,” FDA commissioner Scott Gottlieb said in a news release at the time.

“Endo International plc continues to believe in the safety, efficacy, and favorable benefit-risk profile of Opana ER (oxymorphone hydrochloride extended release) when used as intended, and notes that the Company has taken significant steps over the years to combat misuse and abuse,” the company said in a news release. “Nevertheless, after careful consideration and consultation with the FDA following the FDA’s June 2017 withdrawal request, the Company has decided to voluntarily remove Opana ER from the market.”

The company said it expects a $20 million impairment charge in the second quarter of 2017.

More than 183,000 people died from overdoses related to prescription opioid painkillers like oxycodone, hydrocodone, fentanyl, and morphine over the last 15+ years.

When Opana ER is taken properly orally, it slowly releases into the body as intended. But if the drug is snorted or injected, it releases its dose all at once.

In 2012, Endo reformulated Opana to have abuse-deterrent properties. The new formula turned the pill into a gel that supposedly made it hard to snort or inject when crushed. But in 2013, the FDA found Opana was still easy to inject or snort despite the new formulation.

The abuse-deterrent formulation of the drug was likely tied to an HIV outbreak in Indiana in 2015 that resulted in 165 cases of the disease. The CDC interviewed 112 of the people who contracted HIV, finding that 96% of them had injected Opana using shared needles.

By far the most common route of abuse, however, is ingestion, either by taking too many pills at once or crushing it to counter the timed-release properties. No abuse deterrence properties can stop that.

The FDA held an advisory committee hearing in March to discuss whether the drug’s benefits for pain still outweigh its risks. The panel voted that they did not.