Author: WorkCompAcademy

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.

The New York Times reports that after three years of planning, an immigrant rights group is set to start a smartphone app for day laborers, a new digital tool with many uses: Workers will be able to rate employers (think Yelp or Uber), log their hours and wages, take pictures of job sites and help identify, down to the color and make of a car, employers with a history of withholding wages. They will also be able to send instant alerts to other workers. The advocacy group will safeguard the information and work with lawyers to negotiate payment. Not mentioned in the story is the opportunity for workers’ compensation carriers to recover lost premium.

“It will change my life and my colleagues’ lives a good deal,” Omar Trinidad, a Mexican immigrant, said in Spanish through an interpreter. Mr. Trinidad is the lead organizer who helped develop the app. “Presently, there is a lot of wage theft,” he said. “There has always been wage theft, and the truth is we’re going to put a stop to that.” Mr. Trinidad, suggested the name for the app – Jornalero, which means day laborer in Spanish.

The app had its soft launch on Tuesday night, with beta testing to be held later this month at the Jackson Heights section of New York City day laborer stop that stretches for a mile along 69th Street. Day laborer centers in Brooklyn and on Staten Island will also be testing the product, which is available in Spanish and English.

The plan is for the app to spread to all 70 of the city’s day laborer stops, and then to workers in all kinds of jobs across the country. The Jornalero app began as a project of New Immigrant Community Empowerment, known as NICE, in Jackson Heights, and then expanded in scope when the group’s parent organization, the National Day Laborer Organizing Network, based in Los Angeles, secured more funding.

“It’s going to be a gift that the day laborers are going to give to the working class in America,” said Pablo Alvarado, the executive director of the national day laborer group.

The project has been a collaboration of workers, artists, organizers, lawyers, unions and academics. Sol Aramendi, a photographer based in Queens and an activist with NICE, first joined Hana Georg, a local electrician, to propose the idea to construction laborers, who were immediately enthusiastic. The Worker Institute, a program within the School of Industrial and Labor Relations at Cornell University, ran forums for workers across New York City to see what they most needed in an app. The workers wanted an easy way to track payments, record details about unsafe work sites and share pictures to identify employers. Most of all, they wanted to do it all anonymously.

Alyx Baldwin, a designer who had established a mesh network that kept the Red Hook section of Brooklyn connected to the Internet after Hurricane Sandy, began the design work with those priorities in mind.

A San Francisco group, Rebel Idealist, took over the design at the beginning of this year, after the International Union of Painters and Allied Trades pledged $25,000 to support the app. Mr. Alvarado said his organization also received $15,000 from the Ford Foundation.

The app has workers record their hours and wages, which are then saved in a profile. That profile, which lists a phone number but no name, is linked to the organization’s database. If a worker reports not being paid or being underpaid, NICE will contact the employer. If necessary, lawyers from the Urban Justice Center, who conduct monthly clinics at NICE, will help recover lost wages. It is not hard to imagine how the app can help worker’s compensation carriers recover lost premium, and for authorities to discover and prosecute employers who commit workers’ compensation premium fraud.

The director of head and neck surgery at the University of Pittsburgh Medical Center (UPMC), has used a snake-like robot to perform more than a half dozen throat surgeries over the past month. Simply put, the robot is more accurate than the surgeon could hope to be. The Flex Robotic System is so easy to use, he said even medical students can learn to use it with proficiency within three tries. The surgical robot he’s been using has sub-millimeter accuracy; it can “snake” its way to any place in the body and it causes less damage to soft tissue.

According to the article in Computer World, as far back as 2008, studies showed that patients undergoing minimally invasive heart-bypass surgery using a robot had a shorter hospital stay, faster recovery, fewer complications and a better chance that the bypassed vessels would remain open.

Last year, a Florida hospital proved robots could enable surgeons to remotely operate on patients. The Florida Hospital Nicholson Center in Celebration successfully tested lagtime created by the Internet for a simulated robotic surgery in Ft. Worth, Texas, more than 1,200 miles away from the surgeon at the virtual controls. Being able to perform remote surgeries would allow specialists to attend to any patient, anywhere in the world. The Nicholson Center’s simulator mimics procedures performed by a da Vinci robotic surgical system, the most common robotic equipment in use today; it’s involved in ;hundreds of thousands of surgeries every year worldwide.

The Food and Drug Administration approved the da Vinci Surgical System from Intuitive Surgical in Sunnyvale, Calif. in 2000. Since that time, the da Vinci has been adopted by hospitals in the United States and Europe to treat a range of conditions. The system’s console gives the surgeon a high-definition, magnified 3-D view of the surgical site.

Robots can also be used to deliver high doses of radiation with sub-millimeter accuracy anywhere in the body. The Accuray CyberKnife Robotic Radiosurgery System is one such system developed in 1990 by a professor of neurosurgery and radiation oncology at Stanford University. Approved by the FDA in 2001, the CyberKnife system can treat tumors anywhere in the body and has been used on 40,000 patients worldwide, according to the company.

While still needing skilled medical personnel to oversee them, surgical robots are increasingly showing up tableside in operating rooms, and they may some day allow people with only basic medical knowledge to perform operations outside of a hospital setting. By 2020, surgical robotics sales are expected to almost double to $6.4 billion, according to a recent report by Allied Market Research. That would represent a 10.2% annual growth rate between 2014 and 2020. In 2014, the gynecological application segment accounted for 28% of the surgical robotic systems market share; it is expected to maintain its dominance throughout the next four years.

The increasing need for automation in healthcare and growing demand for minimally invasive surgeries are driving the surgical robotic systems and procedures market, according to Allied. In addition, a rise in cases of colorectal cancer, neurological disorders and gynecological diseases, among others, would boost the adoption of robotic surgical systems well adapted for minimally invasive procedures. “Surgical robotic systems offer less post-surgical complications and reduce labor cost,” the study said. “Due to this, large-scale hospitals based in developed and developing economies are now favoring automated surgical/hospital services, which ultimately drives the market growth.”

Esther Sandoval sustained an admitted industrial injury to numerous body parts, which included the shoulders while employed by the San Diego Unified School District. A request for authorization was made for right shoulder surgery in the form of a rotator cuff repair. The request was submitted for utilization review. Both parties stipulated that the utilization review was not performed in a timely manner. Therefore, pursuant to the opinion in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298, the panel stated “where there is no timely UR decision subject to IMR, the issue of medical necessity for the surgery is to be determined by the WCJ.”

The WCJ determined that the medical/legal opinions of the treating physician, Dr. Tradonsky, and the consultative report of Dr. John W Miles constitutes substantial evidence in favor of applicant’s present need for a right shoulder surgery.

Defendant filed a timely petition for reconsideration, which alleges that the opinions of Dr. Miles and Dr. Tradonsky do not comply with the requirements of labor code section 4604.5(a), as they failed to specifically cite the guidelines set forth in the medical treatment utilization schedule (MTUS) adopted by the administrative director pursuant to labor code section 5307.27. Two Commissioners disagreed in the terse denial of reconsideration in the case of Sandoval v San Diego Unified School District by simply stating “We agree with the WCJ that a requesting physician’s report need not cite to the MTUS in order to comply with Labor Code section 4604.5.1 Here, the medical evidence supporting applicant’s need for right shoulder surgery was not only consistent with the MTUS, but also compelling.” Commissioner Razo disagreed stating “I write separately, however, because I do not agree with the majority’s statement that a requesting physician’s medical report need not cite to the MTUS in order to comply with section 4604.5.”

The Opinion incorporated the Report of the WCJ which stated in pertinent part: “This WCJ disagrees with petitioner’s interpretation of labor code section 4604.5. In the present case, the issue presented is whether applicant should be provided with surgery in the form of a rotator cuff repair. The task of the WCJ is to review the provided medical reports, as well as the MTUS, and determine whether the treatment requested in the medical reports complies with the requirements of the MTUS. If the answer is in the affirmative, the treatment will be awarded to applicant.”

“In reviewing chapter 9 of the 2004 ACOEM practice guidelines, the following language appears under the heading Rotator Cuff Tear: “For partial thickness rotator cuff tears and small full-thickness tears presenting primarily as impingement, surgery is reserved for cases failing conservative therapy for three months. The preferred procedure is usually arthroscopic de compress1. 0n ….. ” In the present case, 10 months have passed from the date of injury. Applicant has not improved after three injections, and therefore it is clear that conservative therapy has failed. Therefore, the WCJ finds that the proposed treatment falls within the MTUS.”

Thus the WCAB approved of a WCJ being the person to read, interpret and apply treatment guidelines instead of a medical doctor. However, this stance seems to be contraindicated in prior panel and appellate level decisions. For example, the panel decision of Elvin Salguero v Charles Gemeiner Cabinets and Insurance Company of the West, January 2014 required a citation to a treatment guideline before an award of medical care. This split panel decision seems to be an erosion of the prior standards.

Even as opiate abuse has become a growing problem, overdose deaths involving sedatives and antiseizure medications in the benzodiazepine category have also risen steeply, according to a recent study published in the American Journal of Public Health and summarized in Reuters Health.

Benzodiazepines are most often prescribed for anxiety disorders, mood disorders such as depression, and insomnia. Benzodiazepines typically used to treat anxiety or depression include alprazolam (Xanax), chlordiazepoxide (Librium), diazepam (Valium) and lorazepam (Ativan). The benzodiazepine clonazepam (Klonopin) is used for seizures, while oxazepam (Serax) and temazepam (Restoril) are used for insomnia.

Benzodiazepines are one of the more common prescription drugs used recreationally. When used recreationally benzodiazepines are usually administered orally but sometimes they are taken intranasally or intravenously. Recreational use produces effects similar to alcohol intoxication. When illegally used as recreational drugs, benzodiazepines are often referred to on the street as benzos, temazies, jellies, eggs, moggies or vallies. These Schedule III and IV substances have also earned the dubious distinction of being second only to opioid painkillers like OxyContin as our nation’s most widely abused class of drug.

Prescriptions for benzodiazepines have more than tripled and fatal overdoses have more than quadrupled in the past 20 years, researchers found. “Overdoses rose at a faster rate than prescriptions, suggesting that people were using benzodiazepines in a riskier way over time,” said lead author Dr. Marcus Bachhuber, assistant professor of medicine at Albert Einstein College of Medicine in New York.

“Benzodiazepines have several known safety risks: in addition to overdose, they are conclusively linked to falls, fractures, motor vehicle accidents, and can lead to misuse and addiction,” Bachhuber told Reuters Health by email.

The study team used data from the annual Medical Expenditure Panel Surveys between 1996 and 2013, which asked U.S. adults whether they had filled one or more benzodiazepine prescriptions. In those 20 years, the number of adults with benzodiazepine prescriptions grew by more than two thirds, from 8.1 million to 13.5 million, the researchers found. In 1996, around 4 percent of people surveyed had filled a benzodiazepine prescription, and by 2013, this had risen to 5.6 percent. They also found that the amount of medication distributed had grown by three-fold. After standardizing doses of all drugs, they found that people with prescriptions received 1.4 times more medication in 2013 than 20 years earlier.

Based on data from the Centers for Disease Control and Prevention, overdose deaths involving benzodiazepines rose from 0.58 per 100,000 people in 1999 to 3.07 per 100,000 in 2013, according to the results in American Journal of Public Health. This increase seemed to level off after 2010 overall, but among certain groups, including people over age 65 and certain minorities, there was no plateau and the rate kept rising, the study found.

It may be wise for workers’ compensation claim administrators to submit treatment requests for benzodiazepines to the UR process when abuse or over prescribing is suspected.