Author: WorkCompAcademy

Last December, the WCAB sitting en banc issued a Notice of Intention to suspend the privilege of Javier Jimenez to appear in any proceeding as a representative of any party before the Appeals Board, or any of its workers’ compensation administrative law judges (WCJs) for one hundred eighty (180) days. Notice was also given in the Notice of Intention that the Appeals Board intended to further order that any suspension continue until there is full compliance with the sanction orders described in the Notice of Intention.

The Notice claimed that over the last three years Mr. Javier Jimenez has been sanctioned numerous times for engaging in bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay while acting for lien claimants as their Labor Code section 5700 agent before the WCAB. “His misconduct has resulted in the repeated imposition of sanctions against him and his clients and has injured other parties and wasted judicial resources.”

Sanctions have been imposed for knowingly proceeding to trial without necessary evidence, repeatedly presenting meritless arguments, making a false statement of material facts in a petition presented to the Appeals Board, impugning the integrity of the WCAB and WCJs, and other willful failures to comply with statutory and regulatory obligations.

Several examples were provided in the Notice. In one case he appeared as a hearing representative on behalf of lien claimant Universal Psychiatric Medical Center (UPMC). Hearing were scheduled in that case and the lien claimant failed to offer evidence in support of its lien claim. The WCJ jointly and severally ordered IMM and UPMC to pay a $2,500.00 sanction and to pay defendant’s reasonable attorney’s fees of $3,500.00.

In another illustrative case, Mr. Jimenez represented lien claimant Joyce Altman Interpreters. The WCJ jointly and severally sanctioned Mr. Jimenez and Altman $2,500.00 for failing to present evidence showing that the lien claims were not barred by the statute of limitations, and because they “failed to provide relevant and probative evidence to support the reasonableness and necessity of the services rendered and reasonableness of the charges,” that they “knew or should have known that their insistence on trial without relevant and probative evidence is frivolous,” and that their activities and those of their hearing representatives “were egregious and frivolous.”

Other examples were provided of a similar nature. However response to the Notice Of Intention and no request for further hearing was received from Mr. Jimenez. Therefore it was ordered that the privilege of Javier Jimenez to appear in any proceeding as a representative of any party before the Appeals Board or any of its workers’ compensation administrative law judges is hereby suspended for one hundred eighty (180) days

A new CWCI study provides an updated look at California workers’ compensation independent medical review (IMR) decisions rendered in 2015 and finds that even though IMR physicians continue to uphold the vast majority of utilization review (UR) physicians’ denials or modifications of treatment, total IMR volume rose 19% last year.

The Institute’s latest analysis uses data from all 163,826 IMR determination letters issued in 2015 in response to applications submitted to the state after a utilization review (UR) physician modified or denied a requested medical service. Although state lawmakers who enacted IMR expected that the number of disputed treatment requests would decline as doctors, attorneys and others involved in the process became familiar with the types of services that would meet the evidence-based medicine standards and be approved through UR and IMR, the latest data show that after 2 years, IMR volume remains high, with 26,065 more cases in 2015 than in 2014.

CWCI’s review of the 2015 IMR decisions reveals the IMR physicians upheld the UR doctor’s modification or denial of the service 88.6% of the time, just shy of the 91% uphold rate for 2014. The mix of services reviewed by IMR physicians was also similar, with prescription drug requests accounting for half of last year’s IMR decisions, versus 48% in 2014, and the UR determination was upheld in nearly 90% of those pharmaceutical IMRs. Disputes over prescription drugs, physical therapy, durable medical equipment, injections and MRI/CT/PET scans accounted for 75% of all services that went through IMR in 2015, while surgery requests accounted for 4.2%, which was down from 4.7% in 2014. Uphold rates ranged from 80% to 90% for most services, with the exception being Evaluation and Management services – primarily requested referrals for consultations – where nearly 1/3 of the UR modifications or denials were overturned by the IMR physician.

The analysis also linked most of the disputed medical services that went through IMR to a small number of requesting physicians. The top 10% of physicians named in 2015 IMR decision letters (1,276 physicians) accounted for 85% of the disputed service requests, while the top 1% (128 providers) accounted for 46%. As in 2014, the new results also show significant geographic variation, with 34% of the IMR decision letters addressed to Los Angeles County recipients even though only 22% of all claims came from that region. On the flip side, the percentage of IMR decisions was disproportionately low in rural areas of the state, as well as in the Inland Empire, Orange County and San Diego.  

CWCI has published its complete analysis of 2015 IMR outcomes in a Spotlight Report, “Independent Medical Review Decisions: January Through December 2015.” CWCI members and subscribers can download the report and a summary Bulletin, while others can purchase a copy. at the CWCI store.

California got a $3.1-million piece of the settlement pie when drugmaker Warner Chilcott agreed to pay the federal government $125 million in October over allegations it defrauded Medicare and Medicaid. But the state did much better in a second, lesser known settlement with the drugmaker just two months later. It got $11.8 million. That heftier payout stemmed from a separate but similar case brought under a California law that allows whistle-blowers to file lawsuits alleging fraud against private insurers.

ModernHealthcare.com reports that California and Illinois are the only states with such laws, and until now, not many healthcare lawsuits have been filed under those statutes. That, however, may change, as awareness of the laws — and recognition of the potential rewards for those who use them — grows. Fraudsters face triple damages under the laws, and whistle-blowers are often entitled to larger shares of recovered money than what they can get under the federal False Claims Act.

“We have found that health insurance fraud is one of the biggest problems we have,” said Nancy Kincaid, a spokesperson with the California Department of Insurance. “It’s a multi-billion dollar problem. Everybody is paying for these losses.” Kincaid also expects to see more such cases in California.

The idea behind the laws, which have been on the books for years, is that it’s in a state’s interest to pursue fraud against private insurers because such misdeeds raise healthcare costs for everyone.

An even larger healthcare-related case preceded the Warner Chilcott one in California. In 2013, Sutter Health, which has hospitals throughout northern California, settled a case brought under the statute for $46 million. The whistle-blower in that case alleged that Sutter included extra, false charges for anesthesia on bills sent to patients and insurers. Sutter did not admit to any wrongdoing as part of the settlement.

There are rich rewards for whistle-blowers who file successful cases under the two laws. Whistle-blowers are entitled to 30% to 50% of the money that is recovered. In the Warner Chilcott case, the whistle-blowers got 49% of the recoveries, amounting to about $11.4 million. In the Sutter case, the whistle-blower received about $13.2 million, according to the California Department of Insurance.

There’s no way to track exactly how many cases are now being brought under these laws in California and Illinois. The cases typically remain private – or under seal – at first. In some cases, the cases can stay under seal for years.

But R. Scott Oswald, managing principal of The Employment Law Group in Illinois, which represents whistle-blowers, said he and his colleagues are seeing more whistle-blowers taking action under the Illinois statute. His firm has several cases that have been under seal for years, he said.

Justin Berger, a principal at Cotchett Pitre and McCarthy who represents whistle-blowers in such cases in California, said his firm also seems to be filing more of the cases lately. Berger said he’s also hearing from U.S. attorneys that they’re seeing more of the lawsuits filed in conjunction with Medicare fraud cases. “It’s becoming more common because there’s a little more visibility,” Berger said.

Historically, the California and Illinois laws haven’t grabbed much attention. Over the years, not too many healthcare related lawsuits had been filed under the California law and even fewer had been filed in Illinois, Simmer said.

Insurance companies may not have traditionally been very interested in the laws because they can simply raise rates to absorb the costs of fraud, said Patrick Burns, a co-executive director of the Taxpayers Against Fraud Education Fund, a not-for-profit supporting whistle-blower incentive programs. It’s also possible not as much fraud slips under the noses of private insurers as it does in Medicare and Medicaid because private insurers have their own robust fraud detection programs, Oswald said. A lack of awareness about the laws is also likely to blame for the slow drip of cases filed under them over the years, Oswald said.

Recent cases, however, are raising the profile of the laws, he said.

The California Department of Insurance is now using $4 million set aside from that Sutter settlement to fund a special health insurance enforcement team that investigates complaints and claims of wrongdoing, Kincaid said. “The commissioner is concerned that there have been a number of these that have been brought forward, typically by whistle-blowers or insiders,” Kincaid said of cases brought under the California law.

In recent years, the number of False Claims Act cases involving healthcare has exploded. Two-thirds of federal whistle-blower lawsuits last year were healthcare-related.

A state correctional officer accused of playing baseball while collecting disability leave benefits for a foot injury has pleaded guilty to workers’ compensation fraud.

Todd Phillips, a correctional officer with the California Department of Corrections and Rehabilitation, was charged with intentionally making false statements regarding his physical abilities and failing to disclose participation in certain events and activities. Had his participation in those activities been known, it would have affected his workers’ compensation benefits, according to a Sacramento County District Attorney’s Office news release.

On Nov. 10, 2010, Phillips injured his right foot while working for the Department of Corrections and Rehabilitation. He continued to work after the injury until he was taken off work by his doctors on Dec. 27, 2011, pending surgery on his foot on Feb. 15, 2012. Phillips continued to tell his doctors that he was unable to return to work because of pain in his foot, prosecutors said.

While off work due to the foot injury and while receiving industrial disability leave benefits, Phillips was filmed by Department of Corrections and Rehabilitation investigators playing in nine police softball games in September 2012. He was filmed running the bases, aggressively running to catch balls in the outfield, hitting his right foot with the bat and pivoting on the right foot while swinging and hitting the ball, authorities said.

Investigators also determined through interviews with other peace officers that Phillips was an active and aggressive participant in softball games during tournaments in July and August 2012.

Sacramento Superior Court Judge Marjorie Koller ordered Phillips to serve 60 days in county jail with the sheriff’s release program recommended. He also was ordered to serve three years probation and to pay $12,823.77 in restitution to the Department of Corrections and Rehabilitation.

Ellen Sims Langille has been named to succeed Michael McClain as general counsel of the California Workers’ Compensation Institute according to Alex Swedlow, president of the Oakland-based research group.

Ms. Langille received her undergraduate degree from UC Santa Cruz and her law degree from the University of California, Hastings College of the Law. Certified as a specialist in workers’ compensation by the State Bar of California, Ms. Langille is currently a partner at the defense firm of Finnegan, Marks, Theofel & Desmond in San Francisco. She brings nearly 25 years of industry experience to the Institute, having specialized in appellate level workers’ compensation cases throughout her career, as well as having served as amicus counsel for the Institute and other organizations in a number of important cases, including Angelotti Chiropractic v. Baker; Dubon v. World Restoration; Brodie v. WCAB; Lockheed Martin v. WCAB; Stuart v. WCAB; and Avalon Bay Foods v. WCAB (Moore). In addition, she has extensive experience in client training, was the editor of “Workers’ Compensation” – California Labor Law Digest, 2014-2016, published by the California Chamber of Commerce, and has been a frequent speaker at industry seminars and conferences.

In her new capacity, Ms. Langille will manage the Institute’s internal and external legal affairs; serve as staff liaison to the Legal Committee, which directs CWCI’s amicus activities; analyze regulatory and legal issues affecting California workers’ compensation; and help develop and present research and legal programs for Institute members and other members of the workers’ compensation community.

In announcing her appointment, Mr. Swedlow said, “The Institute is fortunate to have found someone of Ellen’s caliber for this key position. Her knowledge and expertise, her reputation throughout the California workers’ compensation community, and her familiarity with CWCI’s goals, operations and staff made her an ideal choice. She will begin working at the Institute in early April which should make for a seamless transition as Mike McClain moves toward his retirement in late May.”