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DWC Posts IMR Progress Report

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The Department of Industrial Relations and its Division of Workers’ Compensation posted a progress report on the department’s implementation of Independent Medical Review, one of the most important provisions of Senate Bill 863. Independent Medical Review (IMR) is the medical dispute resolution process that uses medical expertise to obtain consistent, evidence-based decisions.

The “2014 Report on Independent Medical Review” describes the successful implementation of IMR and provides an analysis of data gathered since the process took effect on July 1, 2013. “SB 863 sought to replace a broken medical review process with one where injured workers receive timely care based on the best medical evidence,” said Labor Secretary David Lanier. “Fewer delays and vastly less litigation are better for injured workers and employers. This report shows we are on the right track.”

“Making evidence-based treatment the foundation for decisions about care was a significant change,” added DIR Director Christine Baker. “We are now seeing the tangible benefits of IMR and can expect further improvement to the process.”

Highlights of the report include the following:
1) First year numbers: In 2013, 73,282 IMR applications were filed, of which 22 percent were found to be ineligible; 3,723 IMR determinations were issued and contained on average two treatment requests per decision. IMR upheld 84 percent of UR decisions in 2013.
2) A considerable increase in the number of applications starting in the latter half of 2013 posed challenges to issuing timely determinations. Process changes resulted in IMR decisions being issued in a timely manner by October 2014.
3) Costs: The costs of IMR were reduced by 25 percent in April 2014.
4) Claims data: More than half of workers’ compensation claims as well as IMR applications came from the top 10 claims administrators

Dr. Rupali Das, DWC Medical Director, said, “this report demonstrates the great progress made in resolving medical necessity disputes affecting injured workers.” She added, “DWC will continue to collect information and monitor the results to make ongoing improvements to the program.”

Other findings:
1) Nearly a third of IMR applications as well as workers’ compensation claims originated from the Los Angeles area.
2) Most physician reviewers who provided decisions in 2013 were licensed in California.
3) Physical Medicine and Rehabilitation and Occupational Medicine specialists issued the majority of IMR determinations.
4) IMR decisions were primarily evidence-based and relied on the Medical Treatment Utilization Schedule or other clinical guidelines.
5) Nearly half of IMR treatment requests were for pharmaceuticals, most commonly opioids.

The progress report is posted on the DIR website.

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Robert Shlens M.D. Dies at 79

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Those of us who have been in workers’ compensation for many decades will recall the San Fernando Valley orthopedic surgeon, Robert Dale Shlens M.D.  He passed away on December 5 from Pancreatic Cancer at age 79.

He contracted paralytic poliomyelitis at age 10, the year before the Salk Vaccine became available. He spent the next 9 months in an “Iron Lung” breathing machine. He was informed that he would not be able to walk again due to the severity of his permanent paralysis. With multiple surgeries to align his limbs and a severe scoliosis of his spine, he became ambulatory using braces and crutches.

He completed his high school education while hospitalized for his multiple surgeries and spinal fusion at Warm Springs Georgia, where President Franklin Roosevelt was treated. He attended Indiana University and after completing his undergraduate degree with honors, he applied to the medical school. He was declined admission initially because of his physical disabilities. He persisted until he was admitted to the Indiana University School of Medicine.

After internship he applied for residency training in Orthopedic Surgery. The programs that he applied to indicated this specialty was beyond his capacity because of his physical limitations. Orthopedic Hospital at Los Angeles hired a new staff surgeon from the Warm Springs Georgia Polio Center, Doctor Thomas Gucker. Doctor Gucker had been the lead physician who had operated on Dr. Shlens as a child, performing the multiple reconstructive surgeries. Dr. Gucker was instrumental in persuading Orthopedic Hospital to admit Dr. Shlens to the Orthopedic Surgery Residency Program.

Doctor Shlens completed his training and became Board Certified in Orthopedic Surgery. He practiced for 50 years in Los Angeles using Orthopedic Hospital, Good Samaritan Hospital and St. Vincent Medical Center for his patients.

Doctor Shlens started the first audio tape educational programs for orthopedic surgeons through the Orthopedic Audio Synopsis Foundation. He also started a certification board for Arthroscopic Surgery with the assistance of the Princeton Testing Service. His passion for optimal medical care led him to his reviewing hospitals for the California Medical Board. He was instrumental in helping to close substandard hospitals by testifying in front of the U. S. Congress.

He is survived by his daughter, Jennifer Fey; son, Jonathon Shlens and a grandson, Peter Alexander Fey. He also leaves behind his companion, Buffy Lyn Roney, and his brother, Michael Shlens MD.

He established a scholarship for medical students with physical disabilities at Indiana University. Contributions can be made in his honor to the Shlens Scholarship Program by contacting Indiana University School of Medicine, Office of Gift Development, 1110 West Michigan Street, Indianapolis, Indiana 46202-5100.

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Juliann Sum Appointed Cal/OSHA Chief

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Juliann Sum has been appointed by Governor Brown as chief of the California Division of Occupational Safety and Health (Cal/OSHA). Sum has served as acting Cal/OSHA chief since September 2013. Prior to that, she was a special advisor to Christine Baker, director of the state’s Department of Industrial Relations, which oversees Cal/OSHA.

“I am grateful for the opportunity as division chief to maintain and enhance safe workplaces and practices for workers and employers in California,” says Ms. Sum. “We will continue to consistently enforce Cal/OSHA standards, develop new standards based on scientific data and practical experience, and collaborate with labor and management organizations.”

In 2014, Ms. Sum established a hiring task force to facilitate filling Cal/OSHA vacancies and enabling senior staff at the division to mentor new hires before retiring. She has also strengthened the training of field staff and managers, providing them with core classes in accident investigation, citation writing, case review and legal appeals. During her tenure as acting chief, Ms. Sum also initiated efforts to encourage more immediate correction of workplace safety hazards. Last month she led the division’s effort to finalize and publish specific guidance to protect workers in healthcare settings from exposure to the Ebola virus and other infectious diseases.

Ms. Sum, who joined DIR in 2012 as special advisor, was designated acting chief in September 2013. Previously, she served from 1994 to 2012 as project director with the Institute for Research on Labor and Employment at the University of California, Berkeley, and attorney and industrial hygienist with the Labor Occupational Health Program.

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Owner of Security Company Gets 40 Days in Jail

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A 41-year-old Salinas man was sentenced Thursday to five years’ probation and 40 days in the Monterey County Jail, according to the Monterey County District Attorney’s Office.

Alberto Hernandez was previously convicted of grand theft, willfully failing to file payroll tax returns with intent to evade taxes, failure to secure workers’ compensation insurance and violating the private patrol operator provisions. Hernandez owns Salinas Valley Private Security, a private patrol operation that provides security for businesses and special events.

In February 2013, investigators from the DA’s Workers’ Compensation Unit, the California Department of Insurance, the Employment Development Department and the Bureau of Security and Investigative Services conducted a joint operation. They targeted employers allegedly out of compliance with California Labor Code regulations regarding workers’ compensation insurance. While investigating SVPS, investigators said they discovered Hernandez had been in operation since 2007 and stopped purchasing workers’ compensation insurance in 2011. Further, he had been collecting employees’ payroll tax deductions but hadn’t reported all wages. Hernandez also hadn’t turned those deductions over to the EDD since 2008.

In addition to jail and probation, Hernandez was ordered to pay more than $30,000 in fines and a combined $93,153.10 in restitution to the EDD and the Franchise Tax Board.

Investigators included Martin Sanchez and George Costa, with the DA’s Office, CDI Detective Royce Armstrong and BSIS Investigator Laura Jestes.

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Former Bridezilla Faces 14 Felonies

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A woman who appeared on the reality TV series “Bridezillas” has surrendered to authorities on 14 felony counts of insurance fraud.

Anita Maxwell, 55, surrendered herself to the Superior Court of California, Division 30 in Los Angeles County on 14 felony counts associated with insurance fraud. A California Department of Insurance investigation revealed that Maxwell, featured in season four of the reality series “Bridezillas”, allegedly submitted fraudulent documents and made false claims to receive more than $40,000 in undeserved workers’ compensation benefits. She was also the only Bridezilla to have been left at the altar.

The department’s investigation began in 2012 after Maxwell claimed she injured her neck, back, and shoulder while assisting a patient as a clinical partner. While out on workers’ compensation, Maxwell allegedly lied to her doctor, denying she had prior injuries to her neck, back and shoulder. The investigation also revealed Maxwell had multiple prior injuries dating back to 1990. Prior to the 2012claim, Maxwell received $20,000 from similar workers’ compensation claims. Upon learning of the prior injuries Maxwell’s doctor said he would have changed the apportionment and disability amounts to reflect the past trauma, lowering her claim to only 25 percent related to her work injury.

In addition to lying about her injuries, Maxwell allegedly submitted false mileage forms for her supposed travel to and from doctors and physical therapy appointments. Surveillance conducted during the investigation showed Maxwell on more than a dozen occasions commuting to her appointments from a different location than the one she reported to her insurer. The fraudulent mileage forms submitted resulted in over $5,000 in undeserved mileage reimbursement.

This case will be prosecuted by the Los Angeles District Attorney’s Office.

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Back Brace No Help With Compression Fractures

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Compression fractures in the spine due to osteoporosis, a common condition causing progressive bone loss and increased fracture risk, are especially common in older women. A new study appearing in the Journal of Bone and Joint Surgery (JBJS) found that patients who wore a brace as treatment for a spinal compression fracture had comparable outcomes in terms of pain, function and healing when compared to patients who did not wear a brace.

Nearly 700,000 men and women suffer from a spinal compression fracture each year. These fractures, which for the most part are stable fractures occurring on the front or anterior of the spine, are nearly twice as common as other fractures typically linked to osteoporosis such as broken hips and wrists. Women are at greater risk with more than 30 percent age 70 or older suffering at least one osteoporosis-related spinal fracture. Many patients with these fractures are instructed to wear a soft or rigid brace to stabilize the spine with the intent of reducing pain and preventing further deterioration and collapse of the fracture site.

However, patients often find the braces uncomfortable, and as a result, do not wear the braces consistently. In addition, prolonged use may result in muscular atrophy (muscle deterioration due to lack of use), deconditioning, skin irritation, as well as additional costs and delays in rehabilitation. In a Korean study, 60 patients (age 65 and older) with acute osteoporotic compression fractures were randomly assigned within three days of injury to wear a soft brace, a rigid brace or no brace. Outcomes then were measured at 12 weeks using Oswestry Disability Index (ODI) scoring, a common method for determining levels of pain and mobility in orthopaedic patients.

The overall ODI Visual Analog Pain Scale (VAS) scores that measure lower back pain and anterior (front) body compression ratios (the length of the spine) did not differ significantly among the groups after 12 weeks. The ODI and VAS scores for back pain significantly improved with time after the fractures, and the body compression ratios significantly decreased with time in all three groups.There was no difference in the compression ratio, as seen on radiographic image; general health status; and patient satisfaction rates among the three groups.

“In addition to the cost and discomfort associated with braces, the findings in this study suggest that brace treatment for osteoporotic compression fractures may not provide any additional improvement in fracture healing, mobility and pain,” said Ho-Joong Kim, MD, PhD, orthopaedic surgeon and assistant professor, Seoul National University College of Medicine. “Moreover, the gradual deterioration in life quality, including mental and social wellbeing, associated with this condition reemphasizes the need for prevention of osteoporotic compression and other fractures,” said Dr. Kim.

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LA Physician Gets Jail Time in Fraud Case

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A Los Angeles-area physician whose referrals led to more than $1.7 million in fraudulent Medicare billings was sentenced to 24 months in federal prison for his role in a conspiracy to defraud Medicare related to medically unnecessary power wheelchairs and other durable medical equipment.

Charles Okoye, a 52-year-old Carson resident who formerly operated a medical clinic in South Los Angeles, was sentenced by United States District Court Judge Michael W. Fitzgerald, who also ordered the defendant to pay $931,118 in restitution. Okoye pleaded guilty in August and admitted that he referred Medicare beneficiaries to a Gardena durable medical equipment supply company for power wheelchairs and other durable medical equipment (DME). These beneficiaries had been recruited by employees of Adelco Medical Distributors, Inc. and taken to see Okoye for a single, cursory examination, after which Okoye made the referrals to Adelco.

Adelco’s owner, Adeline Ekwebelem, paid Okoye an illegal kickback for every referral, and then billed Medicare more than $1.7 million for providing the DME, which the beneficiaries did not need or want and often never used. Medicare paid Adelco more than $820,000 on those claims. Ekwebelem was found guilty in September of conspiracy to commit health care fraud, health care fraud, and the payment of illegal kickbacks. Judge Fitzgerald is scheduled to sentence Ekwebelem on January 15.

Okoye admitted that he engaged in a similar unlawful arrangement with another DME company, Esteem Medical Supply.

As a result of his guilty plea and conviction, Okoye’s medical license will likely be suspended for at least three years, and he will likely lose his ability to bill Medicare and Medi-Cal for patient services in the future. The investigation into Okoye, Ekwebelem, and others involved with Adelco’s fraudulent scheme to defraud Medicare was conducted by the U.S. Department of Health and Human Services, Office of the Inspector General, and the Federal Bureau of Investigation.

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DWC Proposes Updated Chronic Pain Guideline

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The Division of Workers’ Compensation (DWC) has posted proposed “Chronic Pain Medical Treatment Guidelines” to its online forum. Members of the public may review and comment on the proposal online until Thursday, December 18.

The current Medical Treatment Utilization Schedule (MTUS) Chronic Pain Medical Treatment Guidelines is based on a “frozen” 2009 adaptation of the Official Disability Guidelines (ODG) published by the Work Loss Data Institute.

The proposed guidelines consist of an edited version of the ODG “Treatment in Workers’ Compensation – Chapter on Pain (Chronic),” published April 10, 2014, which DWC has adapted with permission from the publisher. The proposed guidelines were developed in cooperation with the multidisciplinary Medical Evidence Evaluation Advisory Committee (MEEAC) and are based on the best available medical evidence and scientific studies.

“Chronic pain is a public health problem, a significant factor in delayed recovery, and the main reason for medical treatment disputes in the workers’ compensation system,” said DWC Executive Medical Director Dr. Rupali Das. “A key goal of these guidelines is to incentivize a multidisciplinary approach to chronic pain treatment to restore function and reduce pain and ultimately to encourage return to work following injury. The guidelines promote an evidence-based, comprehensive approach to treating pain, emphasizing measures that prevent or reduce chronic pain, suffering, and disability.”

The proposed MTUS “Chronic Pain Medical Treatment Guidelines” provide a set of best practices for considering a multidisciplinary approach to the management of chronic pain issuing from work-related injuries. The guidelines consist of an introduction (Part 1) and specific recommendations on interventions and treatments for chronic pain (Part 2), in addition to extensive bibliography and reference summaries. Specific guidance on opioid use is not contained in the “Chronic Pain Medical Treatment Guidelines” but is provided in a separate MTUS chapter. The proposed new guideline presents a 132 page “menu” of procedures in alphabetical order similar to the existing guideline. Next to each procedure or topic, the “Summary of Medical Evidence” is given with a conclusion such as “recommended” or “not recommended.” After the procedure summary, the Guideline lists the citations to the scientific studies used to support the conclusion for a total of 964 pages contained in the proposed new guideline.

“Chronic pain is a national concern. By issuing these guidelines, California continues to be on the forefront of providing appropriate care and improving outcomes,” said Department of Industrial Relations (DIR) Director Christine Baker. DWC is a division of DIR.

The MTUS regulations can be found in Title 8 of the California Code of Regulations, beginning with section 9792.20. The proposed guidelines are in section 9792.24.2.

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WCIRB Reports 12% Premium Increase Above 2013

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The WCIRB has completed its report on workers’ compensation insurer loss and premium experience through September 30, 2014. This report is based on data reported to the WCIRB by insurers who wrote almost 100% of the statewide market. The major findings of the report include:

1) California written premium (gross of deductible credits) for calendar year 2013 is approximately $14.8 billion. This is approximately 18% above the written premium reported for 2012 and 68% above the written premium reported for 2009. Written premium for the first nine months of 2014 is approximately $12.5 billion, which is approximately 12% above the written premium reported for the first nine months of 2013.
2) The projected industry average charged rate for policies written in the first nine months of 2014 is $2.93 per $100 of payroll, which is up approximately 2% since 2013 and up approximately 40% since 2009. Even so, the industry average charged rate remains approximately 53% less than it was for the second six months of 2003.
3) The WCIRB projects total ultimate losses and allocated loss adjustment expense (ALAE) for accident year 2013 to be $12.5 billion. While approximately 6% above the projection for accident year 2012 and 25% above the projection for accident year 2009, it remains below the highs experienced prior to the 2002 through 2004 reforms.
4) The WCIRB projects an ultimate accident year combined loss and expense ratio of 111% for 2013. This projection is below that of the last several accident years primarily as a result of increased premium levels and relatively low claim severity growth in 2013.
5) The calendar year combined loss and expense ratio for 2013 reported by insurers is 109%, which is somewhat below the combined ratios for the last few years but represents the sixth straight calendar year with a combined ratio of over 100%.
6) The WCIRB projects indemnity claim frequency for accident year 2013 to be 3.9% above the frequency for 2012 and approximately 14% above the frequency for 2009. The projected indemnity claim frequency for the first nine months of 2014 is 0.9% higher than that for the first nine months of 2013.
7) The WCIRB projects the average cost (or “severity”) of a 2013 indemnity claim to be approximately $85,000, which is generally consistent with the projected severities for the last several accident years. The projected 2013 average loss and ALAE severity reflects an increase of almost $30,000 (or more than 50%) since the full implementation in 2005 of the 2002 through 2004 reforms.
8) The WCIRB currently projects the total statewide ultimate losses on all injuries that occurred on or before December 31, 2013 to be approximately $9.6 billion more than the amounts reported by insurers.

The full report is available in the Research and Analysis section of the WCIRB website.

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WCAB Panel Says No to Joint and Several Award

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Isaiah J. Kacyvenski is a former football linebacker of the National Football League. He was drafted by the Seattle Seahawks in the fourth round of the 2000 NFL Draft. Kacyvenski played six-plus seasons with the Seahawks recording 267 tackles in 90 games and was elected as the Special Teams Captain 3 years in a row. In 2002, Kacyvenski earned the starting job at Middle Linebacker, after battling for the position with Orlando Huff. In 2005, Kacyvenski was Special Teams Captain of the Seahawks and helped lead the team to Super Bowl XL, which was played in Detroit, Michigan. He was released by the team on September 30, 2006. Kacyvenski then signed a one-year contract with the St.Louis Rams on October 3, 2006, and played in ten games for them during the remainder of the 2006 season. As an unrestricted free agent in the 2007 off season, Kacyvenski then signed a one-year contract with the Oakland Raiders on July 11. He was placed on season-ending injured reserve on August 7 and released with an injury settlement a week later after undergoing microfracture surgery on his leg. In September 2008, it was reported that Kacyvenski had decided to retire.

On May 8, 2008, Kacyvenski filed an Application for Adjudication of Claim alleging that he sustained cumulative injury through 2007 to various body parts while a professional football player for the Raiders. The Raiders admitted left knee injury, and the Rams were joined as defendants. At the Mandatory Settlement Conference of July 8, 2014, Kacyvenski elected to proceed solely against the Raiders under Labor Code section 5500.5(c). As a result of the election against the Raiders, the Rams did not appear at the scheduled trial of August 20, 2014, during which time the Raiders and Kacyvenski entered into the Stipulations with Request for Award. The WCJ issued the Joint Award against the Raiders and Rams the same day based on stipulations between the Raiders and Kacyvenski.This Joint Award provided that applicant sustained cumulative injury to various body parts from October 3, 2006 through August 13, 2007 while employed as a professional athlete, resulting in 44% permanent disability and a need for medical treatment.

Although the Rams did not participate in the trial as the non-elected employer, the WCJ awarded benefits to applicant jointly and severally against the Oakland Raiders and against the Rams even though they did not sign the stipulation. The Rams filed a timely Petition for Reconsideration. In their petition, the Rams’ contended that: (1) the Joint Award is based solely on the Stipulations between the Raiders and applicant; (2) the Rams are not a party to the Stipulations and Joint Award since Kacyvenski previously elected to proceed against the Raiders under Labor Code section 5500.5(c); (3) applicant.’s election precluded the Rams’ participation at trial when the Raiders and applicant entered into the stipulated award; and (4) therefore the Joint Award against the Rams violates due process. The Rams contended that the Joint Award is in excess of the WCJ’s powers under section 5903(a}, and request the WCAB to grant reconsideration and order an amended Joint Award solely against the Raiders.

The WCAB agreed in the panel decision of Kacyvenski v Oakland Raiders and granted reconsideration for purposes of amending the Award to remove the Rams from joint and several liability.

It is fundamental that due process requires opportunity to participate in the proceeding determining liability before liability is imposed. (Katzin v. Workers’ Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 711-712 [57 Cal.Comp.Cases 230, 236]; Fidelity and Cas. Co. of New York v. Workers’ Comp. Appeals Bd. (Harris) (1980) 103 Cal.App.3d 1001, 1015 [45 Cal.Comp.Cases 381).)

Here Kacyvenski elected to proceed solely against the Raiders, and further participation by the Rams at trial resulting in the Joint Award was precluded under section 5500.S(c).

In September 2008, Kacyvenski, the first of five other former NFL players that soon followed, agreed to donate his brain upon his death to the Center for the Study of Traumatic Encephalopathy, a joint program between the Boston University School of Medicine and Sports Legacy Institute in order to have research into the effects of concussions on the human brain performed. Kacyvenski was elected to the Board of Directors of Sports Legacy Institute in 2008, and has used this as a platform for awareness surrounding head trauma and making contact sports safer to play. Kacyvenski now works for cutting-edge conformal electronics technology company MC10, running their Sports Business. He developed the technology behind the CHECKLIGHT, a head impact measurement system, in a partnership with Reebok that launched in June 2013

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