Author: WorkCompAcademy

Sergius Apostolos Orloff is a seriously injured worker and is confined to a wheelchair. As a result of a work-related spinal cord injury, Orloff suffers from chronic back pain, anxiety disorder, and personality disorder. He was awarded a permanent disability rating of 100 percent on his worker’s compensation claim,

He also seemed to have an “attitude” when dealing with others, and has a history of threatening physical harm to those involved in his case.

In this current (fourth) criminal case he was prosecuted (again!) and convicted for threatening Police Officer David Kelley who made contact with him while investigating a citizens complaint that he had made “threats of bodily harm or death.” The underlying investigation was triggered by his threats to a CVS pharmacy employee. He appealed this conviction. The Court of Appeal affirmed the trial court this month in the published case of People v Sergius Apostolos Orloff.

But – this was not Orloff’s first criminal case for making threats to those involved in his workers compensation claim. in 2003, he suffered a misdemeanor conviction for violating PC section 653m, subdivision (c), after he made annoying or threatening phone calls to his neighbors. In 2008, he was again convicted of the same offense after he placed several increasingly hostile phone calls and sent fax transmissions to representatives of Health Quest Home Care due to his dissatisfaction with their service. He was again placed on probation and ordered to serve 180 days in jail. (The jail sentence was apparently stayed.)

He was on probation for less than one year when he committed the third offenses which involved his threats to Workers’ Compensation Judges involved in his case and was an unpublished Court of Appeal decision reported in the Workers’ Compensation literature as People v. Orloff (2nd–B211573), 74 Cal. Comp. Cases 1330

Facts of his prior misconduct in the third case, unrelated to the current prosecution, were allowed into evidence and heard by the jury in his fourth case. In the third criminal case Orloff made the threats between 2006 and 2008 while litigating his workers’ compensation claim at the Oxnard WCAB. He telephoned Judge Carrero’s secretary, Belinda Doleman, and left a message “that he was going to get the fxxxxxx judge, that [the judge] better have a policeman available.” Later, Orloff left a message for Judge Carrero that “if he didn’t get what he wanted, he was going to jump out of his [wheel]chair and confront Judge Carrero, . . . [and] make Judge Carrero feel what it was like to be him and have a cervical discectomy . . . .” Appellant also said “something to [the] effect” that he was going “to break Judge Carrero’s legs.” A few days later, appellant left a message that Judge Carrero, Doleman, and David Brotman, another judge, “were going to meet members of the Russian Mafia” who “were going to make sure [they] did what [appellant] wanted.” Appellant said “that he wasn’t going to call anymore because [the judges and the secretary] weren’t going to hear from him and that no one was going to hear from [them] either.”

In July of 2008, Orloff pleaded guilty in the third criminal case to one count of making a criminal threat (PC 422), and one count of making annoying telephone calls (PC 653m, subd. (a)).

This fourth prosecution pertained to a 2014 complaint by Dennis Masino worked as a store manager for CVS Pharmacy. His store filled Orloff’s prescriptions for pain medication. After several episodes of disruptive behavior, Masino told Orloff that he was no longer welcome at the store and that his prescription would be transferred “to any pharmacist that he wants.” But Orloff insisted that Masino had “to give him his medications.” Later Masino received two telephone calls from Orloff. In the first call, Orloff said to “expect something when you least expect it.” About 90 minutes later, Masino received the second call. Masino said, “This is Dennis. How may I help you?” Orloff replied, “You’re dead,” and hung up. Masino understood the threat to mean that his “life [was] at risk.” Masino knew that Orloff was in a wheelchair. But he considered appellant’s death threat credible because “[a]nybody could carry a gun.”

Officer David Kelley had prior police contacts with appellant and was aware of his disability. He was investigating a citizen’s complaint that Orloff had made “threats of bodily harm or death.” He telephonically spoke with Orloff. During that conversation, Orloff uttered racial epithets while responding to Kelly’s comments, which concluded with a threat “Hey, you’re a fxxxxx’ dead nxxxxx if you keep this sxxx up.”

Orloff appeals from the judgment entered after a jury had convicted him in this fourth case of making a criminal threat arising out of the 2014 incidents (Pen. Code, § 422) and attempting, by means of a threat, to deter an executive officer from performing his duties. (§ 69.) The Court of Appeal sustained the fourth conviction in the case of People v Orloff.

The Court of Appeal explained its decision by saying a “person confined to a wheelchair is capable of making a criminal threat. Here the threats were directed to a peace officer and a pharmacy manager. Similar prior threats were directed to workers’ compensation judges. We have compassion for a person confined to a wheelchair. However, pain and suffering does not give license to threaten people.”

“The law does not countenance threats of bodily harm against citizens, peace officers, or judges. This is true whether the threats are clear or veiled. Threats against peace officers or judges are directed not only to the individual but also to the public office that the individual occupies. Such threats strike at the heart of government and will not be tolerated. The judgment is affirmed.”

This case now sets a precedent for proper conduct of an injured worker while working with claims, physicians, and others who are involved in administering the claim.

A study published this month in BMJ offers additional evidence of a correlation between payments by drug manufacturers to doctors and increased prescriptions for drugs developed by the latter.

The analysis of Medicare’s Open Payments program offers a statistical demonstration of a phenomenon supported by more than 20 years of suggestive data, though the study’s authors point out that most previous studies have relied upon self-reporting to obtain payment and prescribing data. Where a recent study published in JAMA established a link between the free meals pharmaceutical companies offer and increased prescriptions, this new study expands that purview to include payments for speaking and consulting fees, as well as indirect payments for education, or for food and entertainment.

Moreover, the authors see a potential connection between payments made to physicians and “substantial differences in regional prescribing.” They conclude that “one additional payment in a region [median value $13] was associated with approximately 80 additional days filled of the marketed drug in the region.” As damning as that sounds, the authors caution that their study doesn’t prove the payments actually led to the increased prescribing, and say that their findings should not be interpreted beyond a regional level.

Even absent clear evidence of causation, pharmaceutical companies continue to make payments to doctors, most of whom don’t believe they can be influenced, according to the study.

Reporting by ProPublica undermines this claim, showing the industry’s efforts seem to specifically target physicians already under sanction for unnecessary prescribing. The preponderance of the evidence suggests pharmaceutical companies have a profit motive behind their actions, according to Charles Rosen, co-founder of the Association for Medical Ethics, who told ProPublica, “I think it’s crystal clear that their fiduciary duty is not to educate physicians and make public welfare better. It’s to sell a product.”

Pharmaceutical and medical device companies are continuing to pay doctors as promotional speakers and expert advisers even after they’ve been disciplined for serious misconduct, according to an analysis by ProPublica.

One such company is medical device maker Stryker Corp.

In June 2015, New York’s Board for Professional Medical Conduct accused orthopedic surgeon Alexios Apazidis of improperly prescribing pain medications to 28 of his patients. The board fined him $50,000 and placed him on three years’ probation, requiring that a monitor keep an eye on his practice.

Despite this, Stryker paid Apazidis more than $14,000 in consulting fees, plus travel expenses, in the last half of 2015.

Stryker also paid another orthopedic surgeon, Mohammad Diab of San Francisco, more than $16,000 for consulting and travel, even though California’s medical board had disciplined him for having a two-year-long inappropriate sexual relationship with a patient, whose two children he also treated. He was suspended from practice for 60 days, required to seek psychological treatment and given seven years’ probation. He is still required to have a third party present while seeing female patients.

According to the ProPublica investigation Stryker is one of more than at least 400 pharmaceutical and medical device makers that have made payments to doctors after they were disciplined by their state medical boards. ProPublica reviewed disciplinary records for doctors in five states, California, Texas, New York, Florida and New Jersey, and checked them against data released by the Centers for Medicare and Medicaid Services on company payments to doctors. The analysis identified at least 2,300 doctors who received industry payments between August 2013 and December 2015 despite histories of misconduct.

In 2009, James Swoben, a former data manager for California-based SCAN Health Plan, filed a whistleblower complaint against his own employer, and then amended that compliant three times over the next two years to add claims against United Health, HealthCare Partners, Aetna, WellPoint and Health Net.

The Centers for Medicare & Medicaid Services (CMS), administrator of the federal Medicare program, pays Medicare Advantage organizations fixed monthly amounts for each enrollee. CMS calculates the payment for each enrollee based on various “risk adjustment data,” such as an enrollee’s demographic profile and the enrollee’s health status, as reflected in the medical diagnosis codes associated with healthcare the enrollee receives. These diagnosis codes are reported by Medicare Advantage organizations to CMS.

Because Medicare Advantage organizations have a financial incentive to exaggerate an enrollee’s health risks by reporting diagnosis codes that may not be supported by the enrollee’s medical records, Medicare regulations require a Medicare Advantage organization, as an express condition of receiving payment, to “certify (based on best knowledge, information, and belief) that the [risk adjustment] data it submits . . . are accurate, complete, and truthful.” 42 C.F.R. § 422.504(l), (l)(2).

The gist of Swoben’s complaint is that the defendants – Medicare Advantage organizations United Healthcare, Aetna, WellPoint and Health Net, and HealthCare Partners, a physician group providing health care services to the organizations’ enrollees in exchange for a percentage of the organizations’ capitated payments – performed biased retrospective medical record reviews.

According to Swoben, retrospective reviews by Medicare Advantage organizations typically should identify (and report to CMS) two types of errors in the risk adjustment data previously submitted: (1) diagnosis codes supported by an enrollee’s medical records but not previously submitted to CMS (underreporting errors); and (2) diagnosis codes previously submitted to CMS but not supported by the enrollee’s medical records (over-reporting errors). Identifying and reporting the first type of error is favorable to the Medicare Advantage organization; identifying and reporting the second type of error is unfavorable.

Swoben alleges the defendants conducted one-sided retrospective reviews designed to identify (and report to CMS) solely the first type of error. He alleges these reviews were designed to exaggerate enrollees’ health risks and cause CMS to make inflated capitated payments to the defendants. These actions, Swoben alleges, rendered the defendants’ periodic certifications under § 422.504(l) false, in violation of the False Claims Act, 31 U.S.C. § 3729(a)(1).

The district court dismissed the suit without leave to amend The 9th Circuit Court of Appeals reversed and reinstated the claim in the published case of James M. Swoben v United Healthcare Insurance Co, et. al.

CMS has long made clear that, under § 422.504(l), Medicare Advantage organizations have “an obligation to undertake ‘due diligence’ to ensure the accuracy, completeness, and truthfulness” of the risk adjustment data they submit to CMS and “will be held responsible for making good faith efforts to certify the accuracy, completeness, and truthfulness” of these data.

“When, as alleged here, Medicare Advantage organizations design retrospective reviews of enrollees’ medical records deliberately to avoid identifying erroneously submitted diagnosis codes that might otherwise have been identified with reasonable diligence, they can no longer certify, based on best knowledge, information and belief, the accuracy, completeness and truthfulness of the data submitted to CMS. This is especially true when, as alleged here, they were on notice – based on audits conducted by CMS – that their data likely included a significant number of erroneously reported diagnosis codes.”

The increasing cost of prescription drugs in the United States has become a source of concern for patients, prescribers, payers, and policy makers.

In order to determine the origins and effects of high drug prices in the US market and to consider policy options that could contain the cost of prescription drugs, researchers reviewed the peer-reviewed medical and health policy literature from January 2005 to July 2016 for articles addressing the sources of drug prices in the United States, the justifications and consequences of high prices, and possible solutions.

Their review published in the Journal of the American Medical Association concluded that per capita prescription drug spending in the United States exceeds that in all other countries, largely driven by brand-name drug prices that have been increasing in recent years at rates far beyond the consumer price index.

In 2013, per capita spending on prescription drugs was $858 compared with an average of $400 for 19 other industrialized nations. In the United States, prescription medications now comprise an estimated 17% of overall personal health care services.

The most important factor that allows manufacturers to set high drug prices is market exclusivity, protected by monopoly rights awarded upon Food and Drug Administration approval and by patents. The availability of generic drugs after this exclusivity period is the main means of reducing prices in the United States, but access to them may be delayed by numerous business and legal strategies.

The primary counterweight against excessive pricing during market exclusivity is the negotiating power of the payer, which is currently constrained by several factors, including the requirement that most government drug payment plans cover nearly all products. Another key contributor to drug spending is physician prescribing choices when comparable alternatives are available at different costs.

Although prices are often justified by the high cost of drug development, there is no evidence of an association between research and development costs and prices; rather, prescription drugs are priced in the United States primarily on the basis of what the market will bear.

Drug prices are higher in the United States than in the rest of the industrialized world because, unlike that in nearly every other advanced nation, the US health care system allows manufacturers to set their own price for a given product. In contrast, in countries with national health insurance systems, a delegated body negotiates drug prices or rejects coverage of products if the price demanded by the manufacturer is excessive in light of the benefit provided. Manufacturers may then decide to offer the drug at a lower price. In England and Wales, for example, the National Institute for Health and Care Excellence considers whether a new drug passes a cost-utility threshold before recommending it for coverage by the National Health Service.

In workers’ compensation claims, and in other systems, one factor that undermines competition among treatment alternatives is the separate roles of patients, prescribers, and payers: physicians write prescriptions, pharmacists sell medications, and patients or their insurers pay for them. This separation has traditionally insulated physicians from knowing about drug prices or considering those prices in their clinical decision making and can similarly remove many patients with good drug coverage from considering the price of the medications they “purchase.”

The most realistic short-term strategies to address high prices include enforcing more stringent requirements for the award and extension of exclusivity rights; enhancing competition by ensuring timely generic drug availability; providing greater opportunities for meaningful price negotiation by governmental payers; generating more evidence about comparative cost-effectiveness of therapeutic alternatives; and more effectively educating patients, prescribers, payers, and policy makers about these choices.

Aluma Systems Concrete Construction of California entered into an agreement with Nibbi Bros. Inc. to design and supply the materials for wall formwork and deck shoring at Nibbi Bros. Inc. construction project.

The terms of the Contract included an indemnification provision that required Nibbi to defend, indemnify and hold harmless Aluma against any and all claims, actions, expenses, damages, losses and liabilities, including attorneys fees and expenses, for personal injuries rising from or in connection with this contract “except to the extent such claims, actions, expenses, damages, losses and liabilities are caused by the acts or omissions of [Contractor]…”

Subsequently, two lawsuits were filed by Nibbi employees against Aluma alleging that in August 2011, the employees were injured after a shoring system designed by Aluma collapsed. The Employee Lawsuits alleged the collapse was due to Aluma’s negligence. Aluma tendered the Employee Lawsuits to Nibbi for defense and indemnification, but received no response.

Subsequently, Aluma sued Nibbi for indemnification based on a specific provision in the parties’ contract. The trial court sustained Nibbi’s demurrer to Contractor’s complaint without leave to amend, relying on the allegations in the underlying lawsuit that set forth claims only against Aluma and not against Nibbi the employer. Thus they argued that the exception applied since the allegations claim only “acts or omissions” of Aluma.

The Court of Appeal reversed and remanded in the published case of Aluma Systems Concrete Construction v Nibbi Bros. Inc.

The parties agreed that pursuant to Labor Code section 3864, an employer is only liable to indemnify a contractor pursuant to the terms of the contract. They dispute whether the indemnity provision – which applies to claims and damages in connection with the Contract “except to the extent” they are “caused by the acts or omissions of Aluma – applies to the Employee Lawsuits.

Nibbi argues the Employee Lawsuits allege solely Aluma’s negligence and the indemnification provision therefore does not apply. Aluma argues that the provision may apply because Aluma is jointly and severally liable for all economic damages in the Employee Lawsuits, including any attributable to the negligence of Nibbi or others, as long as Aluma’s negligence is partially responsible.

Because the employees were working for Employer at the time of their injuries, they cannot sue Employer for damages but must pursue benefits through the workers’ compensation system. This limitation on Employer’s liability does not extend to third parties, however, and the employees may sue Contractor for damages caused by its negligence.

Here the indemnification provision applies to “claims: and the Employer argues this indicates the allegations of the Employee Lawsuits control the provision’s application. But the provision also requires indemnification for Contractor’s “damages” and “losses.”

The court of appeal concluded that there is “no basis to restrict the damages and losses so indemnified to the allegations of the Employee Lawsuits, rather than to the damages Contractor is ultimately found liable for.”