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Author: WorkCompAcademy

Monterey County Contractor Sentenced for 2nd Offense

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Jose Valdez, 41 of Seaside, has been sentenced on one felony count of fraudulent use of a contractor’s license and one misdemeanor count of failing to secure workers’ compensation insurance, according to Monterey County District Attorney Dean D. Flippo.

Valdez was doing business as Angel Valdez Landscaping. The defendant was also sentenced on a misdemeanor violation of probation case involving the same and similar charges.

Judge Larry E. Hayes sentenced Valdez to five years probation on the new case and reinstated his probation in the earlier case on the same terms as previously ordered. He was then sentenced to 180 days in jail on the new case with that term suspended and 180 days on the violation of probation to run consecutive. His terms and conditions of probation include, but are not limited to, obey all laws including Labor Code and Business & Professions Code laws, regulations and other ordinances and pay over $20,000 in fines.

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DWC Posts More Proposed Changes to MTUS Regs

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The Division of Workers’ Compensation has posted a second 15-day notice of modification to the proposed Medical Treatment Utilization Schedule (MTUS) regulations to the DWC website. Members of the public are invited to present written comments regarding the proposed modification to dwcrules@dir.ca.gov until 5 p.m. on Tuesday, December 9. The proposed modifications include:

1) Re-organization of section 9792.21 to clarify the MTUS shall be the primary source of guidance for treating physicians and physician reviewers for the evaluation and treatment of injured workers.
2) Addition of a new section, 9792.21.1 – The Medical Evidence Search Sequence. The Medical Evidence Search Sequence was separated from section 9792.21 to clarify the steps required to find medical evidence. Any search for medical evidence begins, and likely ends, with the MTUS. Searching for medical evidence outside the MTUS is limited to situations where a medical condition or injury is not addressed by the MTUS or if the MTUS’ presumption of correctness is being challenged. (Note: A flow chart is included in the Notice of Modification to Text of the Proposed Regulations to provide a visual aid for the Medical Evidence Search Sequence.)
3) Specification that a treating physician who seeks treatment outside of the MTUS bears the burden of rebutting the MTUS’ presumption of correctness by a preponderance of scientific medical evidence.
4) Requirements that shall be included in a Request for Authority, Utilization Review Decision and Independent Medical Review Decision. Any citation provided by a treating physician or medical reviewer shall be the primary source relied upon which contains the recommendation that guides the reasonableness and necessity of the requested treatment that is applicable to the injured worker’s medical condition or injury. If more than one citation is provided, then a narrative shall be included in the three aforementioned documents explaining how each guideline or study cited provides additional information that guides the reasonableness and necessity of the requested treatment applicable to the injured worker’s medical condition or injury but is not addressed by the primary source.
5) Details of the citation format requirements.
6) Revision of The MTUS Methodology for Evaluating Medical Evidence to clarify when it must be applied by a reviewing physician and how to evaluate the quality and strength of medical evidence used to support a recommendation.
7) Amendments to citations in sections 9792.23, 9792.24.1 and 9792.24.3 referencing the sections currently being revised in rulemaking to sections 9792.20 – 9792.26.

The DWC has also prepared a graphical flowchart that depicts the decision making process of a medical treatment review.

The notice and text of the regulations can be found on the proposed regulations page.

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Appeals Court Affirms “Dual Occupation Rule” for Rating Formula

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Pope Powell sustained an industrial injury to his shoulders and elbows while employed by respondent City and County of San Francisco. The injury caused permanent partial disability. The parties disputed the occupational group to be used in the rating formula for his injury.

Powell’s job title was Director of Fleet Management and Operations. He supervised five employees; dealt with budgets and requests for proposals; and wrote contracts, policies, and procedures. According to Powell’s undisputed testimony, to perform his job duties he spent 80 to 85 percent of his time on a computer performing tasks such as emailing, creating spreadsheets and budgets, and drafting various documents. The parties disputed the appropriate occupational group for Powell. Powell contended occupational group 112 applied; the City contended occupational group 212 applied. The WCJ agreed with the City, and a majority of the Board affirmed the WCJ. The dissenting Board member contended that a third group, 211, was the most appropriate.

The WCJ and the WCAB awarded benefits based upon group 212, which is undisputedly appropriate for Powell’s “managerial” duties: “Mostly Professional and Medical Occupations [¶] Work predominantly performed indoors, but may require driving to locations of business; less use of hands than 211; slightly higher demands on spine than 210 and 211. [¶] Typical occupations: Chemist, Dialysis Technician, Secondary School Teacher.” (Schedule, supra, at p. 3-30.)

Group 112, which Powell argues is the most appropriate: “Mostly Clerical Occupations [¶] Highest demand for use of keyboard; prolonged sitting. [¶] Typical occupations: Billing Clerk, Computer Keyboard Operator, Secretary.” (Schedule, supra, at p. 3-29.)

Group 211, which the dissenting Board member found the most appropriate: “Mostly Clerical Occupations [¶] Emphasis on frequent fingering, handling, and possibly some keyboard work; spine and leg demands similar to 210. [¶] Typical occupations: Bank clerk, Inventory clerk, License clerk.” (Schedule, supra, at p. 3-30.)

The Board majority affirmed the WCJ’s classification of Powell in group 212, quoting with approval from the WCJ’s opinion. The dissenting Board member disagreed. While agreeing that Powell’s job was “managerial in nature,” the dissenting member found “[h]is computer use . . . was necessary and integral to the successful performance of the duties and responsibilities inherent in his position.” Applying the dual occupation rule, the dissenting member found occupational group 211 “the most appropriate.” The Court of Appeal reversed in the unpublished case of Powell v WCAB.

More than one occupational group may apply to an applicant’s job. In such cases, “[t]he employee is entitled to be rated for the occupation which carries the highest factor in the computation of disability. Labor Code section 3202 provides that the provisions of the Workmen’s Compensation Act ‘shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.’ It has been determined that where the duties of the employee embrace the duties of two forms of occupation, the rating should be for the occupation which carries the higher percentage.” (Dalen v. Workmen’s Comp. Appeals Bd. (1972) 26 Cal.App.3d 497, 505-506 (Dalen); accord, National Kinney v. Workers’ Comp. Appeals Bd. (1980) 113 Cal.App.3d 203, 215 (National Kinney).) “[N]o precise percentage of time for [performing the duties of the higher percentage occupation group] is required but rather the pertinent inquiry is whether [performance of those duties] is an ‘integral part of the worker’s occupation.’ ” (National Kinney, supra, at p. 216.)

The Court of Appeal agreed with the dissenting Board member that the proper focus is on the claimant’s physical work activities. The Board majority’s statements that Powell’s ” ‘integral job duties . . . were managerial in nature’ ” and his “job required the use of a computer to fulfill the managerial responsibilities inherent in [his] position . . . , not as his core task,” erroneously focus on a characterization of his job duties as “managerial.” Group 212, which contemplates some small amount of keyboard use, is only partially appropriate in classifying Powell, who spent a substantial amount of his work time on a computer or other keyboard.

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CWCI Says Pharmaceutical and DME Costs Increased Sharply

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Payments for pharmaceuticals and durable medical equipment (DME) in California workers’ compensation continue to increase sharply, adding pressure against the recent reforms to the system according to a new CWCI study that examines medical and indemnity payment trends from accident years (AY) 2002 to 2014.

The study, based on an analysis of 2.1 million claims involving $25.6 billion in benefit payments, breaks out results by accident year, noting average amounts paid for medical services at 3 through 60 months post injury. The latest data show that while average medical payments on lost-time claims in the first two years post injury grew a modest 2.3% between AY 2011 and AY 2012, average amounts paid for pharmaceuticals and DME increased 19.4% to $2,154 — and that came on the heels of a 26% increase in the prior year. Following legislative reforms in 2003 and 2004, pharmaceutical and DME payments declined briefly, falling in both AY 2004 and 2005, but since then they have been the fastest growing medical component in California workers’ comp, increasing more than threefold over the past 7 years. In contrast to the ongoing double-digit increases in pharmaceutical and DME payments, the 2-year data on AY 2011 and AY 2012 claims show medical treatment expenses (i.e., payments to medical providers, hospitals, outpatient facilities, and for ancillary services such as X-rays and MRIs), which accounted for two-thirds of all medical payments on those claims, and medical management/cost containment expenses (i.e., medical bill review, medical case management, utilization review and medical network fees), registered only modest increases, while payments for medical-legal reports declined.

With growth rates varying among the medical subcategories over the past decade, medical treatment declined from 81.7% of all workers’ comp medical payments at 24 months in AY 2002 to 66.6% in AY 2012, while pharmaceutical/DME payments grew from 7.8% to 13.2%. Medical management payments grew from 6.6% to 14.2% over the same period, as those expenses escalated rapidly after AY 2005 as various managed care elements of the 2002-2004 reforms led to increased outlays for medical bill review, medical case management, and medical network access fees, though the 2-year data from AY 2011 and AY 2012 claims indicate they may have leveled off, albeit near record levels.

The study also offers a first view of medical experience for 2014 injury claims, showing total medical payments at 3 months post injury averaged $3,809, up 12% from $3,400 in the prior year, but such outcomes should be treated as preliminary as early treatment patterns often change due to market and regulatory factors. In addition to identifying medical payment trends, the Institute study also provided new trend data on indemnity benefits and length of temporary disability. Among the key findings at 24 months, total indemnity costs per claim for injury year 2012 were up 5.9 percent to $12,923. At 24 months, average temporary disability payments increased by 5.5 percent and paid temporary disability days increased by 2.9%.

The CWCI Research Update report, “California Workers’ Compensation Medical and Indemnity Benefit Trends, AY 2002 – 2014,” is posted on the Institute’s website, and is available to CWCI members and Research subscribers who use their passwords to log in to the site.

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Failure to Properly Communicate Invalidates UR

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The phrase “What we’ve got here is failure to communicate” is a quotation from the 1967 Paul Newman film Cool Hand Luke. The WCAB said nearly the same phrase in the new significant panel decision of Bodam v San Bernardino County Department of Social Services as it invalidated the employer’s UR decision. This famous film line should serve as a constant reminder about the implications of failing to follow the last steps of the UR process.

Timothy Bodam sustained industrial injury to his lower back on March 24, 2011 while employed by San Bernardino County Department of Social Services. His primary treating physician, Edward G. Stokes, M.D., referred applicant for a surgical consultation to Dr. Cheng of Loma Linda University Medical Center. On October 28, 2013, Dr. Cheng faxed an RFA to defendant’s adjuster State Compensation Insurance Fund (SCIF), requesting authorization to perform three-level fusion surgery at L3-S1.

SCIF referred the RFA to its UR agent Forté on October 28, 2013. On October 31, 2013, Forté made its UR decision to deny the treatment request based upon a report prepared by California-licensed and Board certified orthopedic surgeon David C Bachman, M.D., who reviewed the RFA and determined the surgery was not medically supported.

On November 5, 2013, defendant mailed written denial letters to applicant and to Dr. Cheng with copies to applicant’s attorney. There is no evidence that the October 31, 2013 UR decision was communicated to Dr. Cheng by fax, phone, or email within 24 hours after the UR decision was made. There is also no evidence that written notice of the October 31, 2013 UR decision was provided to applicant, Dr. Cheng, or applicant’s attorney within two business days after the UR decision was made.

The WCJ found after an expedited hearing that the Workers’ Compensation Appeals Board (WCAB) “has jurisdiction to adjudicate treatment when utilization review [UR] is untimely” and that defendant’s UR of the Request for Authorization (RFA) to perform spinal surgery submitted by one of applicant’s physicians, Wayne Cheng, M.D., was “untimely,” and lacked a necessary signature. The WCJ further found that the record did not have substantial evidence to allow proper determination of the treatment request, and for that reason ordered the record “reopened” for development by submission of a supplemental report from Dr. Cheng concerning the proposed surgery.

The WCAB in what it classified as a “Significant Panel Decision” held that “the WCJ correctly determined that defendant’s UR decision was not timely communicated and therefore invalid. Further, the WCJ properly ordered further development of the record by directing the parties to obtain a supplemental report from Dr. Cheng.” Accordingly removal was denied in the case of Bodam v San Bernardino County Department of Social Services.

After considering the provisions of Labor Code section 4610(g)(1) and (g)(3)(A) and AD Rule 9792.9.1(e)(3) the WCAB held that:

(1) A defendant is obligated to comply with all time requirements in conducting UR, including the timeframes for communicating the UR decision;
(2) A UR decision that is timely made but is not timely communicated is untimely;
(3) When a UR decision is untimely and, therefore, invalid, the necessity of the medical treatment at issue may be determined by the WCAB based upon substantial evidence.

Section 4610 provides time limits within which a UR decision must be made as well as when it must be communicated and the manner of transmittal. These time limits are mandatory. In Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298 (Dubon II), the Appeals Board held that the WCAB has jurisdiction to determine whether a UR decision is timely. If found untimely, the UR decision is invalid. Under those circumstances, the WCAB may decide the issue of the medical necessity of the requested treatment based on substantial medical evidence. The employee bears the burden of proving that the treatment is reasonably required. (Cf. State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230 [73 Cal.Comp.Cases 981] (Sandhagen).)

In the present case, the RFA was received on October 28, 2013 and the UR decision was timely made three days later on October 31, 2013. However, a UR decision not only must be timely made; it must be timely communicated. A UR decision that is not timely communicated is of no use and defeats the legislative intent of a UR “process that balances the interests of speed and accuracy, emphasizing the quick resolution of treatment requests….”(Sandhagen, supra, 44 Cal.4th at p. 241.). Thus, section 4610(g)(3)(A) imposes further mandatory time requirements for communicating a UR decision. These time limits run from the date the UR decision is made, even if the UR decision is made in less than the five days allowed under section 4610(g)(1).                  

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Employment Presumption Inapplicable in “Small Jobs”

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Yeh Juin Tung hired Michael Waller, who owned Waller Tree Care, to perform services that included removing one tree and trimming four others. The price for the work was $400. Tung was unaware that Waller was not licensed; he knew only that Waller had advertised on Yelp.com as being bonded and insured. Waller did not have workers’ compensation insurance at that time.

On October 6, 2008, Waller appeared at Tung’s property to do the work. He was accompanied by Jose Luis Escalera. Escalara leaned a ladder against a tree and climbed up about 10 feet. As he began to cut branches with a handsaw, he fell. He did not know why he fell; as he stated in his deposition, “All I know is that the ladder went to one side and I wasn’t able to hold on.”

Escalara filed a civil action in December 2009, alleging negligence against both Waller and Tung.

Tung moved for summary judgment, contending that plaintiff was not his employee but an employee of Waller, an independent contractor. He also disputed plaintiff’s negligence claim “because there is no evidence of any breach of any duty or any causation by Mr. Tung.” In his opposition, plaintiff agreed that Waller was an independent contractor, but he raised the “peculiar risk” doctrine to argue that Tung was liable whether or not he was personally negligent, because plaintiff was performing “inherently dangerous work,” and Tung must bear responsibility for all risks of injury to a worker, “regardless of fault.” The parties debated the applicability of the exception to the peculiar-risk doctrine expressed in Privette v. Superior Court (1993) 5 Cal.4th 689.

The superior court ruled in Tung’s favor. Addressing plaintiff’s assertion that Tung was vicariously liable because Waller had not procured workers’ compensation insurance, the court reasoned that “an employee of a negligent contractor can recover under the workers’ compensation system even if the contractor is uninsured.” As plaintiff had not established a triable issue under the peculiar risk doctrine or supported a theory of direct liability, Tung was entitled to summary judgment. From the ensuing judgment on July 13, 2012, plaintiff brought an appeal. The Court of Appeal affirmed the dismissal in favor of the homeowner in the unpublished case of Escalera v. Tung.

On appeal, plaintiff does not suggest that he was Tung’s employee under the workers’ compensation system; he acknowledges that the Workers’ Compensation Act (§ 3200 et seq.) is inapplicable because he worked less than 52 hours on Tung’s property. Plaintiff does, however, assert that Tung was his employer for purposes of civil tort liability under section 2750.5. Plaintiff cites the undisputed facts that “Waller was a contractor who did not have a contractor’s license,” that “Waller advertized [sic] his tree care business on Yelp, and that he did not state in his advertisement that he was not licensed under the contractors’ licensing law.” From those facts plaintiff asserts that Waller is “conclusively presumed to be Tung’s employee” under labor code section 2750.5.

Under this statute Waller would be presumed to be an employee of Tung by performing a service for which a license was required, and plaintiff, by working for Waller, would then also be deemed an employee of Tung. A license is not required, however, for small jobs costing the hirer less than $500. (Bus. & Prof. Code, § 7048.) It was undisputed that the contract price for the tree trimming was $400; accordingly, the presumption would not have applied.

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Santa Clarita Pain Doctor Resolves Whistleblower Claim for $1 Million

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Narinder S. Grewal MD, who operates the Santa Clarita Surgery Center for Advanced Pain Management on the 23800 block of McBean Parkway in Valencia, agreed to pay $1,087,176.09 to the United States and $112,823.91 to California. The settlement concludes a federal “whistleblower” lawsuit filed by Chandana Basu, who used to provide billing and collection services to the Grewal’s clinic, according to the U.S. Attorney’s Office.

Basu’s lawsuit alleged that Grewal and his clinic obtained improper reimbursements from government-run health insurance programs, including Medicare, Medi-Cal and Tricare, a federal health insurance program for military and related military personnel, according to a statement Wednesday from federal prosecutors. The lawsuit also alleged that Grewal and his clinic submitted fraudulent claims by “upcoding” medical services, which means that he allegedly submitted bills that were not justified by the services that were actually provided.

The settlement was announced this month after United States District Judge Andrew J. Guilford unsealed the lawsuit. The parties have asked the court to dismiss the suit, which was filed pursuant to federal and state False Claims Acts.

The whistleblower provisions of the False Claims Acts permit a private person to sue on behalf of the United States and California, and to share in the proceeds of the suit. As a result of the settlement announced today, Basu will receive a total of $204,000.

The case was handled by the United States Attorney’s Office and the California Attorney General’s Office, in conjunction with the Department of Health and Human Services, Office of Inspector General, and the Department of Defense, Defense Criminal Investigative Service.

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New Treatment to Restore Breathing After Long Term Paralysis

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Severe spine injury cases involving paralysis are among the most costly industrial injuries  But now, Case Western Reserve researchers have developed a procedure that restores function to muscles involved in the control of breathing – even when they have been paralyzed for more than a year. The breakthrough offers hope that one day patients with severe spinal cord injuries will be able to breathe again without the assistance of a ventilator.

According to the report in Medical News Today, principal investigator Philippa M. Warren, PhD, presented the results at Neuroscience 2014, the annual meeting of the Society for Neuroscience. “We show that respiratory paralysis can be reversed at long intervals after spinal cord injury,” said Warren, a neurosciences researcher at MetroHealth Medical Center, which is affiliated with Case Western Reserve University School of Medicine. “This has the potential to alleviate the long suffering of currently injured patients, improving their quality, and potentially length, of life.”

Investigators focused their research on a group of nerves that extend from the respiratory control center in the brain stem down to the C3 through C5 vertebral levels of the spinal cord located in the middle of the neck. These fibers, or brain axons, control the diaphragm muscle in its critical function of breathing. Any injury to the spinal cord above the C3 vertebra can cause widespread muscle paralysis leading to difficulties in breathing, but also moving, regulation of cardiac output, and sexual function. Unfortunately, these injuries high in the neck are the most common among sufferers of spinal cord trauma.

Following injury to the spinal cord, damaged nerve fibers die, causing loss of the connections between the brain and muscles of the body. To help preserve tissue immediately after injury, a scar forms at the site of the trauma and extends the distance of several inches up and down the spinal cord. This scar tissue is very dense, contains sugars that inhibit new neuronal growth, and does not reduce in length or intensity over time. The consequence is that new connections cannot form to enable muscle function after injury, which is exceptionally important to breathing.

Spinal cord injury-induced paralysis of the respiratory muscles causes low oxygen in the blood, increases the body’s drive to breathe and drives any functioning respiratory muscles to work harder. The breathing capacity of the spinal cord-injured is often not enough to fully support a patient’s life. However, if new nerve fibers or connections can form in the spinal cord, then pathways can be activated to restore respiratory function. So Case Western Reserve researchers devised a technique to treat the injury site with a specially designed enzyme to reopen connections and to apply respiratory therapy to strengthen the remaining functioning respiratory muscles.

In laboratory animals, investigators used the combination technique to restore respiratory function many months after the injury. First, they injected the chondroitinase enzyme at the site of respiratory nerves in the spinal cord to remove the inhibiting sugars from scar tissue. The action of the enzyme enabled both the formation of new connections and stimulation of latent pathways in the respiratory motor system. Second, the animals were exposed to brief periods of conditions with low oxygen, making them breathe harder and faster to rehabilitate the respiratory muscles. This treatment approach is referred to as intermittent hypoxia.

The combination enzyme injection and intermittent hypoxia treatment boosts levels of serotonin. Commonly known to help relieve anxiety disorders, serotonin also acts more broadly as a neurotransmitter to help stimulate nerve cells. By increasing serotonin at nerve connections and at the specific receptors on the fibers themselves, the researchers were able to help restore diaphragm function back to normal levels in the animals. This finding is extraordinary not only because function to the paralyzed muscle was completely restored, but also because researchers were able to achieve breathing in animals that had been injured for a year and a half.

“It is remarkable to reactivate the diaphragm and breathing in a chronically injured animal that has had a paralyzed half diaphragm most of its life,” said Jerry Silver, PhD, a Case Western Reserve professor of neurosciences who collaborated in the research.

While these results are encouraging, more research is required to perfect the treatment. More than two-thirds of the animals in the study responded to the combined treatment strategy, while the treatment had no effect on the remaining animals. Two thirds of the animals that responded to the combined treatment resumed normal breathing, while the other third experienced erratic breathing in the injured muscle.

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Fresno Applicant Attorney Prevails in Legal Malpractice Case

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Antoian Griffin, retained Fresno attorney Alex Berlin, to represent him before the Workers’ Compensation Appeals Board. Griffin claimed he was entitled to workers’ compensation benefits for a low back injury sustained during a one day job on December 7, 2009. Although Griffin claimed that he experienced severe low back pain the next day, he did not seek treatment until December 11, 2009. He notified the employer of the alleged industrial injury on December 15, 2009.

John Branscum, M.D., examined Griffin and prepared a qualified medical evaluation report. Dr. Branscum reviewed medical records pertaining to this particular injury. Griffin described the event, his current symptoms, and past medical history during the examination. Dr. Branscum noted that Griffin denied having any prior symptoms, injuries or disability to his low back; having any prior work-related injuries; or being the recipient of any prior industrial or nonindustrial awards or settlements. Based on his examination and the information provided to him, Dr. Branscum concluded that Griffin “strained his back on December 7, 2009 and therefore, the injury is AOE/COE,” Griffin began receiving treatment for a back injury through the Pain Relief Health Center. Appellant’s treating physician placed him on total temporary disability with a diagnosis of lumbar spine disc bulge and lower back pain.

However at an MSC prior to the WCAB trial, the medical records submitted by the defense revealed that: Griffin suffered a work-related back injury in 1985 and received workers’ compensation benefits; sought treatment for chronic back pain in 1990; received care for pain in the lumbar area in 2001; and underwent an evaluation for persistent back pain, “felt to be of musculoskeletal origin,” in 2006. ,

After receiving the above evidence, attorney Berlin initiated settlement negotiations in the workers’ compensation matter. The defense offered $13,000 to settle. Mr. Berlin conveyed this offer to Griffin multiple times and recommended that he accept it. Griffin refused this offer and denied the existence of the medical records and claimed that he never had an earlier back injury. Griffin dismissed Berlin as his attorney after trial, but before the workers’ compensation matter was ruled on.

The WCJ found that Griffin did not meet his burden to establish, by a preponderance of the evidence, that he sustained an industrial injury to his back on December 7, 2009. The WCJ questioned his credibility noting that he changed his testimony several times during trial and gave a false and contradictory medical history to Dr. Branscum. The WCJ further observed that, despite his denials, it was clear from the medical records that he sustained a substantial industrial back injury in 1985 that kept him off work until 1988.

Griffin then filed civil action against his worker’s compensation attorney in Superior Court alleging that Mr. Berlin committed legal malpractice and breached his fiduciary duty. The trial court granted summary judgment in Berlin’s favor. The court concluded that Mr. Berlin met his burden of showing there was no evidence that either he or his associate Christopher White fell below the standard of care or breached any fiduciary duty in representing Griffin. The court further found that Griffin did not meet his burden to show the existence of a triable issue of material fact as he did not present any admissible evidence in opposition to the motion. Griffin appealed the dismissal of his malpractice case. The Court of Appeal affirmed the dismissal in the unpublished case of Griffin v Berlin.

Griffin based his legal malpractice claim on two alleged errors committed by respondent Alex Berlin. According to appellant, respondent did not present certain evidence as requested by appellant, specifically a June 3, 2011, letter from Dr. Justin Paquette stating that appellant’s injury was attributable to the December 7, 2009 injury and the two most recent reports from appellant’s treating physician. Appellant further argues that respondent erred by failing to object to the admission of appellant’s medical records that predated the accident.

In support of his summary judgment motion, respondent Berlin submitted the expert declaration of Thomas Tusan, an experienced workers’ compensation attorney. Tusan opined that neither respondent nor his associate fell below the standard of care for providing legal services to applicants before the Workers’ Compensation Appeals Board. Specifically, Tusan noted that the letter from Dr. Paquette was duplicative of the report from Dr. Branscum and contained the same inherent flaw in that it was also based on appellant’s self report that he did not have any prior injuries. According to Tusan, the remaining documents were duplicative and were created after discovery was closed. Tusan further explained that there were no grounds for objection to the admission of appellant’s earlier medical records.

Tusan’s declaration demonstrated that Griffin’s representation did not fall below the standard of care and thus negated his legal malpractice claim. In opposing the motion, appellant failed to submit any admissible evidence and thus did not establish the existence of a triable issue of material fact. Accordingly, the trial court properly granted summary judgment.

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How Hard is it to Stop a Rogue Doctor?

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58 year old Sri Jayantha Wijegunaratne MD, (aka Wijegoonaratne) an Anaheim Hills-based doctor who practices out of a medical marijuana clinic has been court-ordered to stop practicing medicine while he is out on bail for the alleged sexual assault of a female patient. But he was already out on a bail in a separate case after losing in a jury trial that accuses him of having defrauded Medicare by prescribing powered wheelchairs to patients who did not need them. Meanwhile, based on the Medicare fraud case, the California Medical Board has recommended he permanently be stripped of his license to practice. As with the sexual assault case, that matter is pending and Wijegunaratne is mounting a legal fight.

According to the story on OCWeekly.com, Federal prosecutors claim Wijegunaratne prescribed powered wheelchairs, at a cost of about $2,800 each, to six patients who did not need them. His chosen medical equipment supplier billed Medicare, got reimbursed and paid the physician kickbacks, according to the feds. According to a U.S. Attorney press release, Wijegoonaratna was a key player in an insurance scam with co-conspirators 48-year-old Heidi Morishita of Valencia, and 49-year-old Godwin Onyeabor of Ontario, who were also found guilty. The scam involved a number of crimes, including illegally prescribing expensive electric wheelchairs to patients who had no need for them, then billing Medicare for more than $1,500,000, in an ongoing insurance theft that began in January, 2007 and last for five years. Investigators were able to prove that Onyeabor, a manager at Fendih Medical Supply in San Bernardino, paid cash kickbacks to Doctor Wijegoonaratna and Morishita in exchange for fraudulent prescriptions for medical equipment, including the wheelchairs, which generally cost more than $6,000 each.

A jury in the spring of 2013 found Wijegunaratne guilty of six counts of health care fraud and two counts of conspiracy. He was sentenced to 27 months in federal prison, but federal appellate judges ruled he did not have to serve the sentence while he appealed the conviction on the grounds he was not likely to flee and did not pose a danger to the community.

For nearly a year, Wijegunaratne had been allowed to stay out of federal prison and practice medicine as he appealed a conviction of defrauding Medicare.He was still licensed to practice medicine, and that’s what he was doing at a medical marijuana clinic in Riverside, where, according to that inland city’s cops and prosecutors, Wijegunaratne allegedly sexually assaulted a woman patient in May. He pleaded not guilty to counts of felony forcible penetration and sexual battery. A Riverside County Superior Court judge just ordered Wijegunaratne to stop practicing medicine until the sexual assault case is resolved. He had to turn over his prescription pads as well.

An Accusation was filed against him by the Office of the Attorney General of California before the Medical Board of California on October 6, 2014. The allegations are based upon the facts giving rise to his federal jury trial and conviction, and seeks revocation of suspension of his physicians and surgeons certificate. One month later, on November 6, 2014, an Order was issued in Superior Court of the State of California, Riverside County Superior Court, Case No. RIF 1403899. Under the Order, as a condition of bail or Own Recognizance release, Sri J. Wijengoonaranta M.D. (Physician’s and Surgeon’s Certificate Number A-100580) was ordered to cease and desist from the practice of medicine as of November 6, 2014.

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