Author: WorkCompAcademy

The claim examiner’s task of reserving for future medical care is becoming more complex by the day. It is hard to even imagine what medical science will have to offer injured workers even a few years down the road. For example, Vanderbilt University just announced that the FDA has given clearance to market and sell the powered lower-limb exoskeleton created by a team of Vanderbilt engineers and commercialized by the Parker Hannifin Corporation for both clinical and personal use in the United States.

Indego®, which allows people paralyzed below the waist to stand up and walk, is the result of an intensive, 10-year effort. The initial development was funded by a grant from the National Institute of Child Health and Human Development. In 2012 Parker, a global leader in motion and control technologies, purchased an exclusive license to market the design and has worked closely with the Vanderbilt group to develop a commercial version of the medical device.

Until recently “wearable robots” like Indego were the stuff of science fiction. In the last 15 years, however, advances in robotics, microelectronics, battery and electric motor technologies have made it practical to develop them to aid people with stroke and spinal cord injuries. The device acts like an external skeleton. It straps in tightly around the torso. Rigid supports are strapped to the legs and extend from the hip to the knee and from the knee to the foot. The hip and knee joints are driven by computer-controlled electric motors powered by advanced batteries. Patients use the powered apparatus with walkers or forearm crutches to maintain their balance.

“You can think of our exoskeleton as a Segway with legs. If the person wearing it leans forward, he moves forward. If he leans back and holds that position for a few seconds, he sits down. When he is sitting down, if he leans forward and holds that position for a few seconds, then he stands up” one of the engineers said.

Indego is the second exoskeleton to receive FDA certification for U.S. use. The first was a device produced by Rewalk Robotics Ltd. However, Indego’s clearance came after completion of the largest exoskeleton clinical trail conducted in the United States. According to the Parker news release, “Over the course of more than 1,200 individual sessions, study participants were able to use Indego to safely walk on a variety of indoor and outdoor surfaces and settings with no serious adverse events.”

One of the design goals was to give users the maximum amount of personal freedom possible. One of his requirements, for example, was to allow the user to put the exoskeleton on and take it off while sitting in a wheelchair. As a result, the Indego is considerably lighter and less bulky than the other exoskeletons under development.

Beginning this summer,  the scientists will head a four-year U.S. Department of Defense-funded study of the tangible economic and rehabilitation benefits of exoskeletons for people with spinal cord injuries. This will be performed at three medical centers: James Haley Veteran’s Hospital in Tampa (the first VA center in the country to use Indego), the Mayo Clinic in Rochester, Minnesota and the Vanderbilt University Medical Center.

People who use wheelchairs regularly can develop serious problems with their urinary, respiratory, cardiovascular and digestive systems, as well as getting osteoporosis, pressure sores, blood clots and other afflictions associated with lack of mobility. The risk for developing these conditions can be reduced considerably by regularly standing, moving and exercising their lower limbs. The study, which will involve 24 participants, is designed to determine whether regular use of the Indego will also reduce these conditions.

Indego has been available in Europe since November, when it received the CE Mark, the European Union’s equivalent of FDA approval. The initial price is $80,000. The next step is getting the device approved for health insurance reimbursement. This involves getting the Centers for Medicare and Medicaid Services (CMS) to approve a “rate code” for the exoskeleton: a numeric code that identifies the characteristics of patients who Medicare/Medicaid will reimburse for purchasing a given piece of medical equipment. Typically, the government will reimburse 80 percent of the cost of approved medical devices. In most cases private health insurance providers adopt the CMS code.

For years, Andrew F. Puzder, the CEO of CKE Restaurants, the parent company of the Carl’s Jr. and Hardee’s fast-food chains, has been telling the world that while the U.S. government makes life needlessly miserable for businesses, and California, where it has been headquartered, is exponentially worse.

This week, CKE announced that it is moving its headquarters to Nashville, Tennessee. In June 2013, Puzder told the Wall Street Journal that his chain would not expand in California because the state “is not interested in having businesses grow,” noting among many other things that it takes 285 days to get a building permit after signing a lease. This means the chain has to pay rent for over nine months, plus the time needed to build, while not earning any revenues.

Puzder also wrote roughly 15 columns at Human Events in 2012, most of them bemoaning the sluggish U.S. economy and onerous U.S. government policies and regulations.

The company appears to have planned to move its headquarters to Nashville for years. This would explain why it has gone to the franchising model almost everywhere except Nashville. It can use its company-owned stores there to test new menu items and concepts before making them available to franchisees. CKE could have chosen any large metro area for this strategy, including the area surrounding its current California headquarters. But it did not. Nation’s Restaurant News specifically notes that “Among the refranchised units are restaurants in Hardee’s headquarters city of St. Louis and in Santa Barbara County, Calif., where Carl’s Jr.’s home office in Carpinteria is located.” Why did management clearly choose to go elsewhere? Among other things, Puzder told the Journal in 2013 that the Golden State’s labor laws are intolerable.

And Car’s Jr. joins a long list of California companies with an exit strategy. Some of them are big employers. In 2014, Toyota announced plans to move most of the 5,000 managers and employees from Toyota’s Torrance, Calif., headquarters to Plano Texas. Toyota has enjoyed a deep relationship with Texas through its $2.2-billion truck-assembly complex near San Antonio.

And remember many decades ago when General Motors had an assembly plant in Van Nuys. Southern California’s long history as an auto manufacturing center ended in 1992 when a flame-red Chevrolet Camaro rolled off the assembly line, the last of 6.3 million vehicles built there over 45 years. The Van Nuys factory, which also made Pontiac Firebirds, was the last auto plant in Southern California. Its demise -announced to the plant’s 2,600 workers – follows the closure in the early 1980s of a Ford Motor Co. plant in Pico Rivera and a GM plant in South Gate and the 1971 shutdown of a Chrysler Corp. plant in City of Commerce.

A recent published study of “California divestment events” – business decisions to shun the state paint a grim picture. These come in three types: companies that left the state entirely; companies that expanded in other states rather than in California; and a few companies that had planned to grow in the Golden State but changed their minds. The study found records of 1,510 divestment events occurring in California between 2008 and 2014, but that number is an incomplete accounting of the situation. “Experts in site selection generally agree that at least five events fail to become public knowledge for every one that does,” giving rise to the conclusion that the real total is probably more than 9,000 divestment events for this period.

We can say goodbye to number 9001, the Carl’s Jr. headquarters.

The Division of Workers’ Compensation has posted the 2015 ethics advisory committee’s annual report on its website. The ethics advisory committee is a state committee independent from the DWC that is charged with reviewing and monitoring complaints of misconduct filed against workers’ compensation administrative law judges.

The EAC is composed of nine members, each appointed by the administrative director of the DWC for a term of four years. The composition of the EAC reflects the constituencies within the California workers’ compensation community. The EAC meets four times a year at the DWC headquarters. Although EAC meetings are open to the public, the Committee meets in executive session when it engages in the review and discussion of actual complaints, and that portion of the proceedings is closed to the public.The ethics advisory committee is required to make a public report each year summarizing activities in the previous calendar year. Anyone may file a complaint with the EAC. Complaints may be submitted anonymously, but all complaints must be presented in writing.

The 2015 annual report may be viewed or downloaded at the DWC website. In this report, the EAC considered a total of 38 of the 44 new complaints it received in calendar year 2015, in addition to 6 complaints pending from 2014. The complaints set forth a wide variety of grievances. A large proportion of the complaints alleged legal error not involving judicial misconduct or expressed dissatisfaction with a judge’s decision. The majority of complaints were filed by unrepresented employees.

The EAC recommended that “further action be taken” in three lien cases. (cases 9, 10 and 26 in the report) All three complained about a lack of courtesy, dignity, and rudeness on the part of the WCJ, and threatening and intimidating behavior. Cases 9, and 10 were the same case reported by two people. The dispute involved allegations that the WCJ called a doctor’s office and ordered that the doctor appear at a hearing that day. The doctor responded that he was observing a three day religious holiday and could not appear before that was over. The WCJ allegedly responded “I don’t believe you.” The second complaint was filed by a witness at that hearing. “The complainant alleged that the judge appeared smug, negative, and downright abusive to all the parties.” In both cases the EAC “recommended to the CJ that further action be taken and recommended that this matter be referred to personnel.”

In case 26, he complainant, a lien claimant, alleged that the judge displayed rude, abusive, undignified, ill-mannered, intemperate, disrespectful, and discourteous conduct by yelling at the complainant and imposing sanctions for not producing the lien claimant representative at the hearing, even though no subpoena had been served. The complainant filed a Petition for Reconsideration. The Petition was granted for further review. The complainant also attached three panel decisions in different cases that found that the judge engaged in abuse of discretion. Following its review of the investigation, the committee recommended further action and referred this matter to personnel.

Forty-seven-year-old William Alan Huffman pled guilty to felony insurance fraud and tax evasion charges arising from his ownership of Capitol City Construction Company.

For more than three years, Huffman falsely reported to his workers’ compensation insurance carriers that he had either no employees or very few, when in fact he often had several employees. This allowed him to avoid having to pay the insurance premiums he actually owed.

During the same period, he paid his employees in cash or otherwise failed to collect and turn over the required unemployment insurance deductions to the California Employment Development Department (EDD). From February 1, 2012 through June 30, 2015, Huffman underreported his payroll by an estimated $1,092,842, defrauding his insurance companies, Zurich Insurance and Wesco Insurance, of a combined $187,757 in premiums and $115,922 owed to EDD.

Under the terms of the plea agreement, Huffman will be ordered to serve 1 year in county jail, be on formal probation for 5 years, and pay restitution in the amount of $303,680. Sentencing is set for March 24, 2016, in Department 63 before the Honorable Jaime Román.

Rebecca Gage sustained industrial injury to her lumbar spine while employed by the County of Sacramento as a deputy sheriff in 2011. A stipulated award as approved by the WCJ in 2014.

On March 6, 2015, Gage applied to the Sacramento County Employees’ Retirement System (SCERS) for a service-connected disability retirement, and the application was acknowledged by SCERS on June 3, 2015. On July 2, 2015, the Count y initiated payment of disability retirement advances to applicant pursuant to section 4850.4.

Applicant claimed that the County’s delay in initiating disability retirement advances entitles her to recover a penalty pursuant to section 5814. The WCJ found that disability retirement advances pursuant to section 4850.4 are “compensation” as described in section 3207, and for that reason an unreasonable delay in making such advances is subject to a penalty under section 5814. The WCAB reversed in the split panel decision of Gage v County of Sacramento.

Section 4850.4 provides for advanced payment of disability retirement benefits to certain public safety employees who are covered by the Public Employees’ Retirement System (PERS), the County Employees Retirement Law of 1937, or the Los Angeles City Employees’ Retirement System. The provision of that special benefit for those public safety employees is similar to the special payments provided for public safety employees under section 4850.

Earlier panels of the Appeals Board found that delayed payment of the special benefits under section 4850 is not subject to a penalty under section 5814. (Citations Omitted) Moreover, the payment of disability retirement advances is not the payment of workers’ compensation benefits. In this way, section 4850.4 differs from the statutory provision for payment of industrial disability leave (IDL) under Government Code section l 9870(a) to certain state workers as “temporary disability” for an industrial injury. This distinction was recognized by the Supreme Court when it held in State of California v. Workers’ Comp. Appeals Bd. (Ellison) (1996) 44 Cal.App.4th 128 [61Cal.Comp.Cases 325] (Ellison) that a section 5814 penalty could be imposed for unreasonable delay in payment of IDL pursuant to Government Code section l 9870(a) because IDL is a form of temporary disability indemnity.

Turning to the facts in this case, the panel majority held that there is no regular workers’ compensation benefit equivalent to the disability retirement advances provided for certain public employees by section 4850.4. To the contrary, entitlement to receive disability retirement benefits is governed by a separate statutory system apart from workers’ compensation, and the retirement system is administered by an independent retirement board outside of the workers’ compensation system.

Commissioner Marguerite Sweeney wrote a dissenting opinion, and would have sustained the penalty. She said section 3207 plainly defines “compensation” as including “every benefit or payment conferred by this [Division 4] upon an injured employee.” Thus, the County is obligated to pay applicant the “compensation” due under section 4850.4 as conferred by Division 4 of the Labor Code, and the WCAB has jurisdiction to enforce that obligation.