Author: WorkCompAcademy

Christopher Torres suffered industrial injury to his left knee while working for Contra Costa Schools Insurance Group as a claims examiner in 1998, causing 27% permanent disability and need for future medical treatment. It in 2000, he also sustained industrial injury to his neck and spine causing a need for medical treatment.

For a period of time, defendant authorized the Duragesic patches and Norco prescribed by applicant’s primary treating physician, Douglas Grant, M.D., to relieve the pain caused by applicant’s industrial injuries. However, after Dr. Grant requested authorization to refill additional prescriptions for Duragesic patches and Norco in June 2013, defendant’s UR physician Claudio Palma, M.D., issued a UR determination certifying the request for Norco, but conditionally denying certification of the request for Duragesic patches.

Applicant disagreed with the UR determination and submitted an application for IMR on August 2, 2013. On August 15, 2013, applicant’s attorney sent the IMR organization an additional report by Dr. Grant concerning applicant’s history and use of Duragesic patches.

An IMR determination dated November 12, 2013 was sent to applicant’s attorney, stating without further explanation that Duragesic patches were “not medically necessary and appropriate.” On December 18, 2013, applicant’s attorney filed an appeal of the IMR determination regarding the Duragesic patches, writing that the “reviewer failed to review documents submitted by applicant and applicant’s representative before making the determination,” contrary to applicant’s right to due process. Although the IMR appeal was signed by the attorney, it was not verified. Following submission of the matter the WCJ issued his February 18, 2014 decision dismissing the IMR appeal for lack of verification.

The WCAB reversed the dismissal and remanded the case to allow applicant a second chance to file a verified appeal in the panel decision of Torres v Contra Costa Schools Insurance Group and SCIF.

Labor Code section 4610.6(h) provides that a determination of the administrative director pursuant to that section “may be reviewed only by a verified appeal from the medical review determination of the administrative director.” That statutory verification requirement is consistent with Workers’ Compensation Appeals Board Rules of Practice and Procedure, Rule 10450(a), which addresses the form of requests for action filed with the Workers’ Compensation Appeals Board (WCAB), and provides that all such requests “shall be made by petition.” (Cal. Code Regs., tit. 8, § 10450(a).) Rule 10450(e) in turn requires that all such petitions be verified under penalty of perjury. Applicant’s December 13, 2013 IMR appeal includes no affidavit by either the applicant or his attorney verifying the contents of the appeal under penalty of perjury as required by section 4610.6(h) and Rule 10450.7 Rule 10450(e) plainly provides that an unverified petition filed with the WCAB may be summarily dismissed.

However, it has long been recognized that lack of verification does not necessitate automatic dismissal of a nonconforming pleading. (United Farm Workers v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 915; Mullane v. Industrial Acc. Com. (1931) 118 Cal.App. 283, 286 [17 I.A.C. 328, 330]; Wings West Airlines v. Workers’ Comp. Appeals Bd. (Nebelon) (1986) 187 Cal.App.3d 1047 [51 Cal.Comp.Cases 609]; Katzin v. Workers’ Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 712, fn.3 [57 Cal.Comp.Cases 230].). Failure to correct a lack of verification within a reasonable time after receiving notice of the defect allows dismissal of the nonconforming petition. (Lucena v. Diablo Auto Body (2000) 65 Cal.Comp.Cases 1425 [significant panel decision]; Smith v. Workers’ Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 788 (writ den.); see also Connor v. Workers’ Comp. Appeals Bd. (1980) 45 Cal.Comp.Cases 370 (writ den.).).

In this case, defendant raised the issue of lack of verification of the IMR appeal as an issue at the expedited hearing on January 9, 2014. However, applicant did not seek to cure the defect before the appeal was dismissed by the WCJ for lack of verification or at anytime thereafter. Applicant’s failure to timely cure the verification defect after receiving notice of it supports the WCJ’s dismissal of the IMR appeal. However, the WCAB also recognized that the verification requirement in section 4610.6(h) is relatively new, and that there is a strong public policy favoring the disposition of cases on their merits that is consistent with our mandate under Article XIV, section 4 of the California constitution to “accomplish substantial justice in all cases.” If applicant cures the procedural defect in the IMR appeal within 20 days after service of this decision by filing an appropriate verification or amended appeal with the necessary verification, the WCJ should address the substance of the IMR appeal.

Edna Calaustro was sentenced to 24 months in prison and Mele Saavedra was sentenced to three years’ probation for conspiracy to commit health care fraud, conspiracy to pay and receive kickbacks involving the Medicare program, and health care fraud. , The announcement was made by United States Attorney Melinda Haag, FBI Special Agent in Charge David J. Johnson, and Special Agent in Charge for the Los Angeles Regional Office of Inspector General of the Department of Health and Human Services Glenn R. Ferry.

The evidence at trial showed that beginning in approximately December 2006 and continuing through July 2011, Patrick Sogbein, the owner of Debs Medical Distributors, a Van Nuys durable medical equipment company, and his wife, Adebola Adefunke Adebimpe, the owner of Dignity Medical Supply, a Santa Clarita durable medical equipment company, submitted over 400 false and fraudulent claims to Medicare using fraudulent prescriptions and medical records prepared by Calaustro. The evidence also showed that Sogbein and Adebimpe worked with Calaustro, then a San Francisco-based physician, and street level recruiters, including Eduardo Abad and Saavedra.

Abad and Saavedra recruited beneficiaries at locations in the Tenderloin and South of Market neighborhoods in San Francisco, including a fast food restaurant at the Powell Street cable car turnaround and a Tenderloin neighborhood senior center. After identifying beneficiaries, Calaustro, with Abad or Saavedra, went to the beneficiaries’ homes with a portable copy machine, copied their Medicare cards, and conducted sham examinations to obtain background information for the required Medicare paperwork. Calaustro gave the fraudulent paperwork and bogus prescriptions to Sogbein and Adebimpe. Sogbein and Adebimpe, in turn, created additional fraudulent paperwork in the names of their respective companies and submitted the claims to Medicare. Sogbein paid Calaustro a $100 kickback for each power wheelchair prescription. Sogbein paid Abad and Saavedra a $100 and $50 kickback, respectively, for each beneficiary they identified. From December 2006 through July 2011, Sogbein and Adebimpe were paid more than $1.6 million for over 400 fraudulent power wheelchair claims submitted to Medicare using the fraudulent prescriptions written by Calaustro. In mid-2011, Calaustro began working as a physician in Los Banos.

Calaustro, 71, of Daly City and Los Banos, and Saavedra, 49, of San Francisco, respectively, along with co-defendants Sogbein, Adebimpe, and Abad, were indicted by a federal grand jury on Jan. 26, 2012, for conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and health care fraud, in violation of 18 U.S.C. § 1343. Calaustro and Saavedra were arrested on Feb. 9, 2012, in Los Banos and San Francisco, respectively. After their initial appearances, Calaustro and Saavedra were released on bail. On Sept. 19, 2013, a grand jury returned a superseding indictment, charging Sogbein, Adebimpe, Calaustro, Abad, and Saavedra with conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and health care fraud, in violation of 18 U.S.C. § 1343. The indictment also charged Sogbein, Calaustro, Abad, and Saavedra with conspiracy to pay and received kickbacks involving the Medicare program, in violation of 18 U.S.C. § 371.

On Sept. 30, 2013 and Oct. 21, 2013, respectively, Calaustro and Saavedra pleaded guilty to conspiracy to commit health care fraud, conspiracy to receive kickbacks involving the Medicare program, and health care fraud. Calaustro and Saavedra both testified in November 2013 at the trial of co-defendants Sogbein, Adebimpe, and Abad.

The sentences for Calaustro and Saavedra were handed down by the Honorable Jeffrey S. White, United States District Court Judge. Judge White also sentenced Calaustro to a 3 year period of supervised release following her 24 month prison term and ordered forfeiture of $1,577,426 and restitution of the same amount to Medicare. Calaustro remains out of custody and is scheduled to begin serving her sentence on Nov. 17, 2014. Judge White sentenced Saavedra to perform 500 hours of community service during her 3 year term of probation and ordered forfeiture of $275,338 and restitution of the same amount to Medicare.

On June 17, 2014, co-defendants Sogbein, Adebimpe, and Abad, who were all convicted after trial, were sentenced to prison terms of 144 months, 51 months, and 12 months and 1 day, respectively. Sogbein is in custody. Adebimpe began serving her sentence. Abad remains out of custody pending his appeal.

Denise Marie Barton and Randy Luskey are the Assistant U.S. Attorneys who are prosecuting the case with the assistance of Assistant U.S. Attorney David Countryman, Beth Margen, and Bridget Kilkenny. The prosecution is the result of an investigation by the Federal Bureau of Investigation in San Francisco and Office of Inspector General, Department of Health and Human Services in Los Angeles.

After the report yesterday of the passing of Retired Workers’ Compensation Judge Samuel L. Sosna Jr. we are saddened to learn of the passing of yet two additional members of our Southern California Workers’ Compensation community.

Jack Paul Koszdin, the founding partner of the applicant’s firm of Koszdin, Fields Sherry and Katz in Van Nuys California passed away on Sunday, August 24, 2014. There will be a memorial service this Wednesday, August 27, 2014 at 10:00 a.m. at Mt. Sinai Cemetery in the Chapel Tanach. The California State Bar website provides the following tribute to Jack.

Born in 1931, Jack Koszdin grew up in Chicago, a child of Russian Jewish immigrants. As a young man, he moved to California and attended UCLA for his undergraduate degree and his J.D. Admitted to the California State Bar in 1955, Jack Koszdin dedicated his professional life to securing the rights of injured workers throughout California, which he championed through the law, through the classroom and through broadcast media.

Jack strongly supported workers’ union rights, serving as a founding member of VELPEC. He was legal advisor to the Valley Labor Political Education Council and co-hosted the Union Voice radio program.

Jack’s passion for politics lead him to work on numerous political campaigns for democratic candidates throughout his career. He supported such notable leaders as Tom Bradley, Bill Lockyer, Hilda Solis, Loretta Sanchez, and Richard Katz, among many others.

Service to the community has always been a priority to Jack. He has served in leadership positions for such organizations as Red Cross, Child Guidance Clinic, and Valley Hillel. Jack lectured in law at UCLA, the University of West Los Angeles and L.A. Trade Tech. He was a partner in the firm of Levy, Koszdin and Woods before heading the firm of Koszdin and Siegel, which later became Koszdin, Fields, Sherry and Katz, where he remained senior partner until his recent retirement.

It is through the efforts of Jack P. Koszdin and the powerhouse attorneys like him, who over the years have zealously protected some of our state’s most important yet vulnerable members — the laborers — that such landmark cases as Zemke v. Workmen’s Comp. App. Bd. 68 Cal. 2d 794 and Franklin v. Workers’ Comp. Appeals Bd., supra, 79 Cal.App.3d at pp. 237-238 came to be. After almost 60 years in the field of workers’ compensation law, Jack cared deeply for the plight of the injured worker, whose rights and benefits need defending now more than ever.

While Jack’s professional achievements are many, his greatest pride comes in the successes of his children, Shelli, Kari, Kenton, David and Frank, who are all accomplished professionals in their own right. He lived in Burbank, California with his beloved wife of years, Helen Griffin.

We must also report that Workers Compensation Judge Dennis Stach from the Riverside WCAB Passed away on August 7, 2014 in Norco, CA.

Judge Stach graduated from Elmwood Park High School in 1962. He enlisted in the US Air Force where he served as a Pararescue Specialist during the Vietnam era. He went on to undergraduate studies at California State Polytechnic University and then law school at the University of La Verne and became an attorney in 1979 and later served as a Workers’ Compensation judge in Southern California. He retired in 2010 after 25 years of service.

Judge Stach is survived by his sister, Mary Ann Carr, from San Diego; and brother, William Stach, of Streamwood, IL.

The Southern California Workers’ Compensation community will surly miss both of these fine professionals who were well respected and well liked by colleagues.

A former San Mateo County files clerk caught on video working at restaurants she owned while collecting disability for a supposed back injury was sentenced Thursday to 120 days in jail, according to District Attorney Steve Wagstaffe. and the story in Insurance News Net.

But Superior Court Judge Craig Parsons recommended that sheriff’s officials instead confine and electronically monitor Sunita Sagar, 46, inside her home over that period. Parsons also placed Sagar on probation for three years, but defense attorney Lauren Kramer said the felony fraud charge will be reduced to a misdemeanor after 18 months if she behaves.

Sagar and her husband own multiple restaurant franchises in the Bay Area, including several Denny’s, a Baja Fresh and a Jack in the Box, although none in San Mateo County, Wagstaffe said. They also own a computer equipment store in Fremont.

According to prosecutors, Sagar collected disability benefits from 2008 to 2012 for a back injury she reportedly sustained while working. She convinced doctors she was “completely sedentary and could not conduct her daily activities,” and requested in-home care, according to Wagstaffe.

But insurance fraud investigators caught Sagar on hidden video “engaged in a very active lifestyle” that included working at her businesses, walking and bending without sign of discomfort, according to Wagstaffe. When her doctors were shown the video, they confirmed that Sagar had misrepresented her disability and was able to work, the district attorney said.

Despite her client’s no-contest plea, Kramer said the videos don’t prove Sagar was working. The allegations “weren’t ever tested,” she added, because the case didn’t go to trial. “Obviously we have a very different perspective,” Kramer said in a phone interview Thursday. “She indisputably spent time at the restaurants they owned, but she was not involved in the day- to-day operations.”

Sagar received approximately $22,000 in undeserved benefits, according to the district attorney’s office. On Thursday, she was also ordered to pay restitution to the county totaling $54,773, which include the costs of the investigation, according to Wagstaffe.

The U. S. Drug Enforcement Administration (DEA) published in the Federal Register the new Final Rule moving hydrocodone combination products (HCPs) from Schedule III to the more-restrictive Schedule II, as recommended by the Assistant Secretary for Health of the U.S. Department of Health and Human Services (HHS) and as supported by the DEA’s own evaluation of relevant data. The Federal Register has made the Final Rule available for preview on its website today at http://go.usa.gov/mc8d. This Final Rule imposes the regulatory controls and sanctions applicable to Schedule II substances on those who handle or propose to handle HCPs. It goes into effect in 45 days.

The Controlled Substances Act (CSA) places substances with accepted medical uses into one of four schedules, with the substances with the highest potential for harm and abuse being placed in Schedule II, and substances with progressively less potential for harm and abuse being placed in Schedules III through V. (Schedule I is reserved for those controlled substances with no currently accepted medical use and lack of accepted safety for use.) HCPs are drugs that contain both hydrocodone, which by itself is a Schedule II drug, and specified amounts of other substances, such as acetaminophen or aspirin.

“Almost seven million Americans abuse controlled-substance prescription medications, including opioid painkillers, resulting in more deaths from prescription drug overdoses than auto accidents,” said DEA Administrator Michele Leonhart, “Today’s action recognizes that these products are some of the most addictive and potentially dangerous prescription medications available.”

When Congress passed the CSA in 1970, it placed HCPs in Schedule III even though it had placed hydrocodone itself in Schedule II. The current analysis of HCPs by HHS and the DEA shows they have a high potential for abuse, and abuse may lead to severe psychological or physical dependence. Adding nonnarcotic substances like acetaminophen to hydrocodone does not diminish its abuse potential. The many findings by the DEA and HHS and the data that support these findings are presented in detail in the Final Rule on the website. Data and surveys from multiple federal and non-federal agencies show the extent of abuse of HCPs. For example, Monitoring the Future surveys of 8th, 10th, and 12th graders from 2002 to 2011 found that twice as many high school seniors used Vicodin®, an HCP, nonmedically as used OxyContin®, a Schedule II substance, which is more tightly controlled.

In general, substances placed under the control of the CSA since it was passed by Congress in 1970 are scheduled or rescheduled by the DEA, as required by the CSA and its implementing regulations, found in Title 21 of the Code of Federal Regulations. Scheduling or rescheduling of a substance can be initiated by the DEA, by the HHS Assistant Secretary of Health, or on the petition of any interested party. (Detailed information on the scheduling and rescheduling process can be found beginning on page 8 of Drugs of Abuse on the DEA’s website at http://www.justice.gov/dea/pr/multimedia-library/publications/drug_of_abuse.pdf.)

The rescheduling of HCPs was initiated by a petition from a physician in 1999. The DEA submitted a request to HHS for a scientific and medical evaluation of HCPs and a scheduling recommendation. In 2013, the U. S. Food and Drug Administration held a public Advisory Committee meeting on the matter, and the committee voted to recommend rescheduling HCPs from Schedule III to Schedule II by a vote of 19 to 10. Consistent with the outcome of that vote, in December of 2013 HHS sent such a recommendation to the DEA. Two months later, on February 27, the DEA informed Americans of its intent to move HCPs from Schedule III to Schedule II by publishing a Notice of Proposed Rulemaking in the Federal Register, outlining its rationale and the proposed changes in detail and soliciting public comments on the proposal, of which almost 600 were received. A small majority of the commenters supported the proposed change.