Author: WorkCompAcademy

The California Supreme Court ruled that employers cannot deny a worker a place to sit just because they prefer the person stand, and they must consider the employee’s work station, not their overall duties, when determining whether to provide a seat. The court’s opinion stemmed from lawsuits brought by cashiers at the CVS drugstore chain and tellers at Chase Bank who said they were wrongly denied a place to sit while working. Experts called the opinion a victory for the cashiers and tellers.

Nykeya Kilby worked for eight months as a customer service representative for CVS Pharmacy, Inc. During both the interview and training process, CVS told Kilby it expected her to stand while performing her various duties. Although actual duties varied by both store and shift, Kilby’s duties included operating a cash register, straightening and stocking shelves, organizing products in front of and behind the sales counter, cleaning the register, vacuuming, gathering shopping baskets, and removing trash. CVS did not provide Kilby a seat for these tasks. Kilby filed a federal class action lawsuit alleging CVS violated Wage Order No. 7-2001, applicable to the mercantile industry. The district court ruled that an employee’s “entire range of assigned duties” must be considered to determine whether the work permits the use of a seat or requires standing. It noted “there is no dispute that many of the duties performed by Clerk/Cashiers at CVS require the employee to stand while performing them . . . .” Accordingly, it granted summary judgment in favor of CVS and Kilby appealed.

Kemah Henderson and three other bank tellers worked at JPMorgan Chase Bank branches. They filed a class action suit against Chase for violating the suitable seating provision of Wage Order No. 4-2001, section 14, subdivision (A) (section 14(A)), applicable to “professional, technical, clerical, mechanical, and similar occupations.” The district court noted that the job duties varied depending on the shift or branch location and whether the employee was a lead or regular teller. Based on these differences, the district court denied class certification and Henderson appealed.

The Ninth Circuit Court of Appeal certified three questions that needed clarification to the California Supreme Court involving California wage order requirements that an employer provide suitable seating for employees under certain circumstances which were answered in the case of Kilby v CVS Pharmacy.

Over a century ago, the Legislature responded to the problem of inadequate wages and poor working conditions by establishing the Industrial Welfare Commission (IWC), giving it authority to investigate various industries and promulgate wage orders establishing minimum wages, maximum work hours, and conditions of labor. Wage and hour claims are today governed by two complementary and occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the Legislature, and a series of 18 wage orders.The wage orders at issue here state that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” (Cal. Code Regs., tit. 8, §§ 11040, subd. 14(A) (Wage Order No. 4-2001), 11070, subd. 14(A) (Wage Order No. 7-2001).)

The California Supreme Court answered the Questions posed by the federal Ninth Circuit Court of Appeals as follows:

(1) The “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for.
(2) Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee’s characteristics.
(3) The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.

With the answers to this questions, the matter will now be decided by the Ninth Circuit in due course. But Michael Rubin, an attorney for the plaintiffs, said the decision was a victory for all workers who have been denied a place to sit while they perform repetitive tasks in fixed locations. “For the millions of California worker in the retail industry, this is going to mean that in the next few weeks, their employers will start giving them seats, which will promote health and comfort,” he said.

In Medicare, medical professionals may be banned from seeking money to see patients if they’ve been convicted of defrauding a health care program or fraud-related offenses. But according to a report by the Center for Investigative Reporting, those banned providers have no problem starting a second career in California’s workers’ compensation system.

Medicare banned Dr. Thomas Heric in 2006 after he pleaded guilty to charges related to writing reports based on diagnostic tests that turned out to be fraudulent. In his letter to the judge who sentenced him, Heric pledged that going forward, he would use “whatever talents I may have in service to the community.” Heric then found a new line of work in the workers’ compensation medical system. His job was to review data on injured workers’ sleep patterns and issue reports needed to bill insurers.

Five years later, prosecutors accused Heric of fraud again. They say he was writing virtually identical reports that gave rise to sham billing. One expert testified in court that Heric’s sleep-study reports were so bad that they failed to address one worker’s serious breathing problems for months, a lapse that he said could harm “the general public.”

That case is pending in Orange County Superior Court. Heric’s attorney, Robert Moest, said Heric stands by the reports and is fighting the charges. “There are different opinions in the scientific community,” Moest said. “It shouldn’t be the matter of a criminal charge.”

A Center for Investigative Reporting analysis of public records found that several other chiropractors and doctors banned by Medicare moved their career to workers’ compensation.

Among them: chiropractor David C. Nguyen. Medicare banned him in 2005 over an insurance fraud conviction. Earlier this year, San Diego prosecutors indicted him for insurance fraud again, this time for passing along bribes from a chiropractor to a therapy center – both workers’ compensation medical providers.

And Medicare doesn’t bar just doctors, pharmacists and chiropractors with histories of fraud. It also takes a look at who’s in charge. Officials with the Department of Health and Human Services’ inspector general’s office will investigate clinic operators’ ownership and ban those with a 5 percent or greater stake who have a history of certain fraud convictions, according to Jason Weinstock. The rule covers direct and indirect ownership.

No such rule exists in workers’ comp. State labor department officials said they do not have the authority to review the practices of medical professionals. Instead, they said in a statement, the boards that issue licenses to medical providers are the “appropriate authority for regulation and review.” Yet no board or commission checks who’s running workers’ compensation clinics.

The state’s chiropractic board stripped Fred Khalili of his license and denied his attempt to get it back in 2013. But he still signs physicians’ paychecks at two Los Angeles County workers’ compensation clinics. Khalili’s legal problems started in 1995, when an FBI agent informed him that he was under investigation for paying $135,000 in kickbacks to auto-injury lawyers. Khalili was seeing a steady flow of patients who’d been hurt in car crashes, court records say.

Facing an indictment, he began to work undercover for the FBI. He recorded phone conversations with lawyers who demanded a cut of his medical treatment income in exchange for a parade of patients. He even went to the office of one lawyer who was believed to be a member of a Russian gang and kept a gun in his desk drawer, according to court records.

Khalili ultimately pleaded guilty to wire fraud and tax evasion and lost his chiropractic license in 2000. Twelve years later, he returned to the chiropractic board, hoping to get his license reinstated. The board refused, citing subsequent arrests for vandalism, a hit-and-run collision, driving without a license and making harassing phone calls. He appealed the decision to a higher court but lost.

Khalili remains heavily involved in workers’ compensation clinics, something that would draw scrutiny under Medicare’s rules as a fraud prevention measure. In the vacuum of such oversight in workers’ compensation, prosecutors now are pursuing charges against Khalili.

He was accused in February of insurance fraud for accepting kickbacks on behalf of First Choice Healthcare Medical Group clinics in Los Angeles and Panorama City. In exchange for the kickbacks, he directed staff at the clinics to dispense expensive pain creams to injured workers, the case alleges.

The charges against Khalili say he directed an attorney in 2009 to put the clinic ownership in the name of a physician, but Khalili controls the bank accounts. Attorney Malcolm McNeil, who advises First Choice, said Khalili does not own the clinics.

Khalili has not entered a plea in the case, and his criminal attorney did not return calls for comment.

Carlos Ivan Rodas worked as a dishwasher at Guido’s Restaurant. In 2012, Rodas took the trash from the restaurant to the dumpster located approximately 300 feet away from the restaurant. A patron later found Rodas unresponsive and bloodied in Guido’s parking lot. Rodas was pronounced dead at the scene by emergency personnel. The autopsy report concluded that Rodas’s death was caused by a hemorrhage from an invasive pulmonary aspergillosis as sequelae of treated cavitary tuberculosis. In lay terms he died from a pulmonary hemorrhage while taking out the garbage at work. Rodas’s arteries were prone to bleed because of lesions caused by tuberculosis.

Internist Ronald Zlotolow, M.D. opined that either coughing, brought about by refuse odors, or lifting the garbage caused the bleeding.

The WCJ concluded that Rodas sustained injury arising out of and occurring in the course of his employment that resulted in death. However, a split panel decision reversed and concluded that Dr. Zlotolow’s opinion was based on surmise, speculation, conjecture, or guess and therefore was not substantial evidence that Rodas’s work contributed to the cause of his pulmonary injury and death.

The Court of Appeal reversed, and based on the expert medical testimony of Dr. Zlotolow found that the injury that led to Rodas’s death arose out of and in the course of employment in the unpublished case of Rodas v WCAB.

In the context of this case, the Court noted that the question of what caused the intrathoracic pressure can be answered only by circumstantial evidence since direct evidence is obviously unavailable. “Circumstantial evidence is sufficient to support an award of the commission, and it may be based upon the reasonable inferences that arise from the reasonable probabilities flowing from the evidence; neither absolute certainty nor demonstration is required.” (Pacific Employers Ins. Co. v. Industrial Acci. Com. (1942) 19 Cal.2d 622, 629.)

Thus the Court concluded that In the case of death occurring at work, the difficulty in proving industrial causation is “no reason to deny an award if the evidence warrants it.” (Clemmens v. Workers’ Comp. Appeals Bd. (1968) 261 Cal.App.2d 1, 7.) All reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee. (Id. at p. 8.) This is consistent with the mandate that the workers’ compensation laws “shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.” (Lab. Code, § 3202.)

The Court of Appeal did not discuss the application of labor code section 3202.5 which was added to the Labor Code in 1993 after Clemmens (and other early cases defining the application of “liberal construction”) were decided. In adoption section 3202.5 in 1993 the Legislature expressly provided that “[n]othing contained in Section 3202 shall be construed as relieving a party from meeting the evidentiary burden of proof by a preponderance of the evidence.” Section 3202.5 was at the time part of a legislative reform package resolving long standing concerns over various issues by all stakeholders. Employers had for decades voiced concern about courts using liberal construction to decide the outcome of litigation, and the legislature addressed this concern in 1993 by limiting the application of liberal construction to resolve evidentiary disputes by enacting 3202.5. An appellate decision after the adoption of 3202.5 that resolves an evidentiary dispute by citing 3202 alone, without at the same time citing 3202.5 and discussing and reconciling both statutes does not seem to afford employers the benefit of the legislative process that attempted to balance the rights of employers and employees in workers compensation litigation. When a court cites decisions applying liberal construction before 1993 without noting there was a change in the law makes it seem as though section 3202.5 was never adopted by the legislature and does not exist. Indeed the Court of Appeal cites here in Rodas the recent Supreme Court case of South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291 as support for this decision. But even in South Coast Framing, the California Supreme Court in 2015 cites section 3202, but makes no mention of how that should be reconciled with section 3202.5.

The Rodas decision is just another of many examples of courts applying “liberal construction” to resolve a factual dispute without consideration of what happens after 1993 when section 3202.5 was adopted.

The Division of Workers’ Compensation finally announce the release of the 137 Page fourth edition of the Physician’s Guide to Medical Practice in the California Workers’ Compensation System. This comprehensive guide helps physicians and other health care providers dispense care to injured workers while complying with the statutes and regulations that are applicable to medical providers.

This edition of the Physician’s Guide to Medical Practice in the California Workers’ Compensation System has been developed by the Division of Workers’ Compensation to continue the mission set forth in the first three editions of the Physician’s Guide, namely, to assist physicians in understanding the many complexities in the California workers’ compensation system in order to provide optimal care to ill and injured workers.

“The physician’s guide was last revised in 2001, and much has happened in the last 15 years,” said DWC Acting Administrative Director George Parisotto. “The guide provides up-to-date information that will help practitioners apply the reforms set forth in SB 863.”

“Physician understanding of the workers’ compensation system is critical to helping deliver appropriate care to injured workers,” said DWC Acting Executive Medical Director Dr. Raymond Meister.

The manual contains 16 chapters, revising material from the third edition and providing new chapters on the following subjects:

1) Parties to the System
2) Benefits and Payments to Employees
3) Reports and Timelines in the System
4) Evidence-Based Medicine and the MTUS
5) Utilization Review and IMR
6) Physician Payment and the OMFS

The Physician’s Guide is intended as an educational and reference tool to supplement the reader’s professional experience. While intended primarily for treating providers, others in the workers’ compensation community may also find the information helpful, particularly Qualified Medical Evaluators (QMEs) and those preparing for the QME certification exam which is set for April 16th.

Claims administrators who encounter physicians who are having difficulty navigating and complying with the workers’ compensation system may find it expeditious to send a PDF copy of this Guide to the physician, pointing out the chapter that is most applicable for the physician to read in order to learn about how the system works. Physicians would be well served to look over this Guide in its entirety and have it handy as a reference source when questions arise.

A biosimilar drug (also known as follow-on biologic or subsequent entry biologic) is a biologic medical product which is almost an identical copy of an original product that is manufactured by a different company. Biosimilars are officially approved versions of original “innovator” products, and can be manufactured when the original product’s patent expires. Reference to the innovator product is an integral component of the approval.

And lower-cost copies of these complex biotech drugs could save the United States and Europe’s five top markets as much as 98 billion euros ($110 bln) by 2020, a new analysis showed on Tuesday as reported in an article by Reuters Health. Realizing those savings, however, depends on effective doctor education and healthcare providers adopting smart market access strategies, the report by IMS Institute for Healthcare Informatics said.

The potential for copycats to take business from original biotech brands is increasingly grabbing the attention of investors, with many worried about the impact on profits at companies like Roche and AbbVie. It also presents an opportunity for an emerging group of biosimilar specialists, such as South Korea’s Celltrion and large generic drugmakers with biotech know-how, like Novartis’ unit Sandoz.

A saving of 98 billion euros is based on eight major branded biotech drugs, including AbbVie’s Humira and Roche’s Herceptin, that are set to lose patent protection over the next five years. It also assumes an average biosimilar price discount of 40 percent, and savings would fall to 74 billion euros at a 30 percent discount and 49 billion at 20 percent. The IMS forecast covers Germany, France, Italy, Britain, Spain and the United States.

The European regulatory authorities led with a specially adapted approval procedure to authorize subsequent versions of previously approved biologics, termed “similar biological medicinal products”, or biosimilars. This procedure is based on a thorough demonstration of “comparability” of the “similar” product to an existing approved product. In the United States, the Food and Drug Administration (FDA) held that new legislation was required to enable them to approve biosimilars to those biologics originally approved through the PHS Act pathway. The FDA gained the authority to approve biosimilars (including interchangeables that are substitutable with their reference product) as part of the Patient Protection and Affordable Care Act signed by President Obama on March 23, 2010; on March 6, 2015, Zarxio obtained the first approval of FDA.

Interest in biosimilars has grown significantly in the past two years thanks to the arrival of copies of sophisticated antibody drugs that are among the world’s biggest-selling prescription medicines. Europe has lengthy experience with biosimilars, having approved the first such products 10 years ago, but uptake still varies widely from country to country, depending on local market conditions.