Author: WorkCompAcademy

This was defense attorney Kimberly Allyson Hansen’s third discipline proceeding. It arises from her representation of two defendants before the Workers’ Compensation Appeals Board. The WCAB imposed sanctions against Hansen and three other attorneys from her law firm after concluding that they had intentionally misled the Board, causing it to take unwarranted action.

According to the 23 page State Bar Opinion (Designated for Publication) “At all times relevant to this matter, she worked as a vice-president at the law firm of Stockwell, Harris, Woolverton & Muehl and was an experienced workers’ compensation attorney.”

Louis Speight, an employee of Vulcan Materials Company, Western Division, submitted a workers’ compensation claim for work-related injuries. During the course of litigation, it took defense attorneys three attempts to obtain a QME panel. The Medical Unit denied the first QME Request “due to the lack of all necessary information.” The Medical Unit also informed Hansen that her first QME Request had been filed prematurely. Hansen was directed to “resubmit [her] request as soon as possible…” The Medical Unit notified Hansen it was rejecting her second request because it also lacked “all necessary information. ” One week later, on July 28, 2009, Hansen submitted a third QME panel request to the Medical Unit.

Between the second and third QME request, the Speight case was set for conference. The WCALJ overruled defense objections and set the matter for trial. But a defense Petition for Removal was granted on the issue of the QME panel. However defendants “failed to disclose to the WCAB that the Medical Unit had timely advised Hansen that the First and Second QME Requests were deficient.”

Three weeks after the Petition for Removal was filed and before the WCAB ruled on it, the Medical Unit issued a QME panel in response to Hansen’s third QME Request. “The WCAB granted the Petition for Removal on December 21, 2009, on the grounds that the ALJ should have ordered the matter off calendar to allow the Defendant to obtain a QME panel. Still, Hansen did not notify the Board that a QME panel had already been assigned three months earlier, and she again remained silent when the WCAB issued a second order on March 9, 2010, rescinding the ALJ’s trial-setting order and directing the Medical Unit’s Medical Director to issue a QME panel.”

Three weeks later, the WCAB learned of the true state of affairs when the Medical Director filed a verified Petition for Reconsideration, a Petition to Reopen the Record, and an Offer of Proof, which disclosed that the Medical Unit had in fact timely responded to Hansen, advising her that the First and Second QME Requests had been denied for procedural deficiencies and that the Third QME Request had been granted and a panel had been issued several months earlier.

The WCAB did not take lightly the fact that its orders to the ALJ to vacate the trial setting order and to the Medical Unit to issue a QME panel were based on “a distorted version of the record.” The WCAB concluded its hotly contested sanction hearing by saying the “problem was not that the attorneys zealously represented their client; it was that they did so by misleading the WCAB, by concealing material facts, and by supporting their position with half-truths.”

As a consequence of the WCAB’s actions, the Office of the Chief Trial Counsel of the State Bar (OCTC) initiated disciplinary proceedings against Hansen and her colleague Kevin White, an associate with the Stockwell firm, who attended a mandatory settlement conference. The hearing judge in the disciplinary matter determined against Hanson that “Hansen’s participation in the workers’ compensation case involved acts of dishonesty constituting moral turpitude. She further found three factors in aggravation (two prior records of discipline, significant harm, and lack of insight) and two factors in mitigation ( cooperation and good character).”

Both Hansen and the Office of the Chief Trial Counsel of the State Bar (OCTC) appealed. Hansen asserts that this case should be dismissed because she made no misrepresentations to the WCAB, but rather was merely zealously representing her clients. OCTC supports the hearing judge’s culpability findings, but requested a finding of more aggravation and less mitigation, and that after appeal there be a recommend disbarment.

Having independently reviewed the record it was found that “Hansen is culpable of acts of moral turpitude, in violation of Business and Professions Code section 6106.” However it agreed “with the hearing judge that an 18-month actual suspension is appropriate.”

The new DOJ guidelines, issued September 9, 2015 and referred to informally as the “Yates Memo” articulated several changes to DOJ policy. In substance the Memo promised that “Americans should never believe, even incorrectly, that one’s criminal activity will go unpunished simply because it was committed on behalf of a corporation.” The new policy seeks to hold corporate officers responsible for acts of their corporate employers.

And it seems that the Yates Memo has found a new target. A former senior executive of Tenet Healthcare Corp has been indicted on charges that he participated in a scheme to pay bribes for patient referrals, enabling the U.S. hospital chain to fraudulently bill state Medicaid programs for $400 million.

John Holland, a former senior vice president, was charged in an indictment filed in federal court in Miami with four counts of mail fraud, health care fraud and major fraud against the United States, the U.S. Justice Department said on Wednesday. The charges came after Dallas-based Tenet and two of its Atlanta-area units reached a settlement with the Justice Department and agreed to pay more than $513 million to resolve criminal charges and civil claims in a related settlement.

“These charges underscore our continued commitment to holding both individuals and corporations accountable for their fraudulent conduct,” said Acting Assistant Attorney General Kenneth Blanco said in a statement.

Holland, 60, of Dallas, pleaded not guilty during a court hearing in Miami. Richard Deane, his lawyer, said he believed “the company’s resolution should have ended the matter.” “Mr. Holland is not guilty and we now look forward to presenting this case to a jury,” Deane said in a statement.

Prosecutors said Holland beginning in 2000 was chief executive of Tenet-owned North Fulton Medical Center Inc in Roswell, Georgia, and served as senior vice president of operations for Tenet’s southern states region from 2006 to 2013.

The indictment said that from 2000 to 2013, Holland and others engaged in a scheme to pay over $12 million in bribes and other illegal inducements to the owners and operators of a firm that operated clinics in Georgia and South Carolina. In exchange, the clinics, which provided prenatal care to mostly undocumented Hispanic women, referred patients to Tenet hospitals and arranged for services to be provided to patients and their newborns at Tenet hospitals. Prosecutors said Holland sought to conceal the scheme by circumventing internal accounting controls and falsifying records.

Prosecutors said the scheme enabled Tenet hospitals to fraudulently bill the Georgia and South Carolina Medicaid Programs for over $400 million, and allowed Tenet to obtain more than $149 million in Medicaid and Medicare funds.

The indictment said Holland also made false statements to the U.S. Department of Health and Human Services’ Office of Inspector General about its compliance with the terms of a 2006 agreement reached as part of an earlier settlement.

The case is U.S. v. Holland, U.S. District Court, Southern District of Florida, No. 17-cr-20054.

The Division of Workers’ Compensation will administer the next Qualified Medical Evaluator (QME) Competency Examination on Saturday, April 29, 2017.

Physicians who wish to take the exam on that date must submit a completed original Application for Appointment as Qualified Medical Evaluator (QME Form 100). Send all documentation/fees required and complete the Registration for the QME Competency Examination (QME Form 102).

The application and all required documentation must be reviewed and approved by the DWC before a physician can be registered for the exam (Title 8, California Code of Regulations §§10, 11). The application must be postmarked by March 16, 2017 in order to qualify for this exam. Qualified registrants will receive a confirmation letter along with a Candidate Information Booklet by email/mail. The DWC is not responsible for late or lost applications.

All physicians are required to pay a non-refundable/non-rollover $125.00 fee to sit for any upcoming QME examination (Title 8, California Code of Regulations § 11(f)(2)). Before appointment as a QME, the physician shall complete a 12 hour course in disability evaluation report writing approved by the Administrative Director (Labor Code § 139.2). The DWC will assess the annual QME fee after the candidate has successfully passed the QME Competency Exam in order to activate the QME status.

The primary purpose of this examination is to demonstrate the competence of a physician in evaluating medical issues in the workers’ compensation system and to evaluate competency with respect to current California Workers’ Compensation System terminology, laws, rules, regulations, and medical-legal procedures. The examination is designed to ensure that there is a commonly understood body of knowledge and common language for QMEs which will increase the probability of ratable and impartial medical/legal evaluations of injured workers in California.

The test questions are now organized into four categories:

1) Clinical Assessment/Evaluation and Medical Treatment
2) Disability Issues/QIW/Vouchers/P&S
3) Causation and Apportionment
4) .Basic Laws and Regulations and Report Writing Elements

Candidates will not be asked any questions that assess specific knowledge of medical treatment (e.g., psychology, orthopedics). However, candidates should be familiar with the existence of the DWC evaluation guidelines and AMA Guides.

Please call 1-800-794-6900 or (510) 286-3700 or email QMETest@dir.ca.gov for further assistance. For additional information regarding the qualifications to become a QME, please visit the DWC website.

The Division of Workers’ Compensation has posted the 2016 DWC Audit and Enforcement Unit annual report on its website. The annual report provides information on how claims administrators audited by the DWC performed and includes the Administrative Director’s ranking report for audits conducted in calendar year 2015.

The annual report details the results of audits conducted in 2015 and provides the name and location of each insurer, self-insured employer and third-party administrator audited during that time.

As a result of PAR/FCA audits conducted during calendar year 2015, the Audit and Enforcement Unit found and cited 5,255 violations against claims administrators, with administrative penalties totaling $1,476,147.00. Not all administrative penalties are subject to collection. Under the Labor Code, no penalties are assessed on those “cited” violations unless the audit subject fails the audit at a specific level.

This report to the Legislature summarizes audits conducted in accordance with Labor Code §§129 and 129.5 to assure that injured workers, and their dependents in the event of their death, are provided with all benefits due them in an expeditious manner. The audit findings, by law, must detail the number of files audited, the number and type of violations cited and the amount of an undisputed compensation found due and unpaid to the injured worker.

The DWC Administrative Director’s 2016 Audit Ranking Report lists, in ascending order by performance rating, the administrators audited in calendar year 2015. Performance of insurers, self-insured employers, and third party administrators subject to profile audit review and full compliance audit is rated in accordance with the performance standards set annually by the Administrative Director.

The DWC Audit and Enforcement Unit completed a total of 43 profile audit reviews (PAR audits). Compliance officers audited 2729 claim files.Thirty-five audit subjects (81%) met or exceeded the performance standard and therefore had no penalty citations assessed.

Congratulations to all who passed the audit. The following were the top 10 who easily exceeded the PAR Standard set for the year.

1) Schools Insurance Authority \ Sacramento
2) Keenan & Associates \ Pleasanton
3) Warner Bros. Studio Facilities \ Burbank
4) RICA and RICC \ Encino
5) Zenith Insurance Company \ San Diego
6) TriStar Risk Management \ Fresno
7) U.S. Concrete \ San Jose
8) Intercare Holding Insurance Services, Inc. \ Orange
9) Solar Turbines, Inc. \ San Diego
10) Tokio Marine & Nichido Fire Insurance Company \ Pasadena

At the other end of the list, eight audit subjects (19%) failed to meet or exceed the PAR standard, and their audits expanded into a full compliance audit of indemnity claims. Six of the eight audit subjects failed to meet or exceed the FCA 2015 performance standard. These audit subjects were assessed administrative penalties for all penalty citations.

In one of his last acts of 2016, President Obama signed into law the largest piece of healthcare legislation since the Affordable Care Act. The law – known as the 21st Century Cures Act – has the potential to invigorate medical research, promote innovation and speed the development and FDA approval of new treatments for cancer and other chronic diseases.

It also has the potential for increasing the risk of taking medications – including death. Not long ago, the risks were put into perspective in a controversial article.

The Journal of the American Medical Association published a landmark review by Dr. Barbara Starfield (Johns Hopkins School of Public Health), “Is US health really the best in the world?” In it, Starfield revealed what many people inside the medical establishment already knew: every year, like clockwork, the medical system was killing huge numbers of people.

Each year in the U.S., as Dr. Starfield reported, there are:

1) 12,000 deaths from unnecessary surgeries;
2) 7,000 deaths from medication errors in hospitals;
3) 20,000 deaths from other errors in hospitals;
4) 80,000 deaths from infections acquired in hospitals;
5) 106,000 deaths from FDA-approved correctly prescribed medicines.

The total of medically-caused deaths in the U.S. every year is 225,000. (a conservative estimate)

This makes the medical system the third leading cause of death in America, behind heart disease and cancer.

In the wake of Starfield’s devastating report, other facts came to light: 2.1 million people in America, every year, are hospitalized as a result of reactions to FDA-approved medicines. Annually, 36 million serious adverse reactions to those drugs occur.

Since the FDA approves every medical drug given to the American people, and certifies it as safe and effective, how can that agency remain calm about the fact that these medicines are causing 106,000 deaths per year? Dr. Starfield answered this question in an email interview.

“Even though there will always be adverse events that cannot be anticipated, the fact is that more and more unsafe drugs are being approved for use. Many people attribute that to the fact that the pharmaceutical industry is (for the past ten years or so) required to pay the FDA for reviews [of its new drugs]—which puts the FDA into an untenable position of working for the industry it is regulating. There is a large literature on this.”

Can you offer an opinion about how the FDA can be so mortally wrong about so many drugs? “Yes, it cannot divest itself from vested interests. (Again, [there is] a large literature about this, mostly unrecognized by the people because the industry-supported media give it no attention.)”

Perhaps the public and claims administrators should approach the use of newly expedited FDA approved medications with an abundance of caution.