Author: WorkCompAcademy

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.

Earlier this year, workers’ compensation claims leaders once again participated in a nationwide survey about some of their most pressing operational challenges. Up 57 percent in survey participation from 2013, the confidential results – with insights from over 400 manager, director, and executive-level claims leaders – have now been published in the 2014 Workers’ Compensation Benchmarking Study Report. Top issues confronting claims organizations involve addressing the rapidly shrinking talent pool, grappling with emerging technology trends, and operationalizing performance measures…all while improving productivity and reducing costs. Strikingly similar to the 2013 Study findings, the 2014 Study reflects an industry facing critical hurdles, many of which are not getting better. Based on 70-plus data points, the 2014 results further quantify how claims organizations focus resources to address these substantial hurdles. Key findings reveal:

1) Challenges measuring best practices within top ranked core competencies
2) Declining investment in current and future talent development
3) Low adoption of disruptive technologies, such as predictive analytics
4) Continued obstacles with claims system integrations
5) Limited use of outcome measures and risk/reward strategies to propel top performance from internal staff, vendor partners and medical providers
6) Observed impact of the Affordable Care Act on claims

The study found broad consensus among respondents about what matters most in claims management. For instance, the top two most valued core competencies are disability management and medical management. However, formal training programs are modest relative to the complexity of these and other tasks. Less than half of respondents provide training to senior level claims staff and a smaller percentage, 42%, invest in training new hires. Among those who have formal training for new hires, 39% say that training ends within three months and another 28% say it ends four to six months post-hire. The majority of respondents say it takes up to four years for new employee investment in training to pay off. Specifically, 32% expect a reasonable ROI within two years and another 44% within three to four years.

The industry has struggled to bring technology tools to the adjuster in a streamlined, user-friendly way. Unfortunately, systems can be very difficult to integrate. A symptom of sub-optimal solutions can be called the “three screen scenario,” wherein adjusters might use three computer screens to access multiple systems throughout the day as they manage streams of phone calls and emails.

Less than a third of respondents say they measure provider performance. This low rate extends across all classes of respondents. When provider performance measures are used, return-to-work outcomes and claim costs are most common, while less than quarter of respondents measure average narcotic use.

An Orange County employee was arraigned for committing insurance fraud and perjury by making false statements and concealing information related to his worker’s compensation claim.

William Parker, 43, Corona, is charged with 15 felony counts of insurance fraud, four felony counts of making a fraudulent statement, two felony counts of attempted perjury under oath, and one felony count of perjury by declaration. If convicted, Parker faces a maximum sentence of 17 years and six months in state prison. Parker is being held on $50,000 bail.

On June 4, 2005, Parker was hired by the Orange County Probation Department (OCPD) as a Deputy Juvenile Corrections Officer. On Oct. 5, 2007, Parker was involved in a non-work related motor vehicle accident which caused injuries to his back and resulted in loss of time from work. Parker filed an insurance claim as a result of that automobile accident and received a settlement.

On Sept. 28, 2010, Parker claimed he suffered a back injury while working for the OCPD. Parker filed a Worker’s Compensation Claim and was taken off work by his treating doctors after the county accepted the claim. Parker did not return to work until late February 2013 when he returned as an Office Specialist due to his claimed injuries.

In February 2012, Parker filed a lawsuit against a citizen for personal injuries where the defendant claimed injuries to his back after sustaining another motor vehicle accident. During the pendency of this lawsuit, Parker is accused of making material misrepresentations and perjuring himself during his depositions and in his responses to interrogatories.

Between 2010 and 2013, Parker was treated by various doctors as a result of his claim. While being treated by doctors, Parker is accused of denying and failing to disclose the prior injuries about his back.

Deputy District Attorney Pam Leitao of the Insurance Fraud Unit is prosecuting this case.

The Division of Workers’ Compensation has made further changes to its California EDI Implementation Guide, Version 2.0, pursuant to revision of the Workers’ Compensation Information System (WCIS) regulations. The changes are subject to an additional public comment period of 15 days. The comment period will close on November 28, 2014.

The California legislature enacted sweeping reforms to California’s workers’ compensation system in 1993. The legislature directed the DWC to put together comprehensive information about workers’ compensation in California. The result is the WCIS. The WCIS has four components: the First Reports of Injury (FROI) reporting guidelines were implemented March 1, 2000. The Subsequent Reports of Injury (SROI) reporting guidelines were implemented July 1, 2000. Reporting of annual summary of benefits began January 31, 2001

Medical bill payment reporting regulations were adopted on March 22, 2006. The regulations require medical bill payment records for services with a date of service on or after September 22, 2006 and a date of injury on or after March 1, 2000 to be transmitted to the DWC. The medical services are required to be reported to the WCIS by all claims administrators handling 150 or more total claims per year.

California workers’ compensation medical bill payment records are processed by diverse organizations: large multi-state insurance companies, smaller specialty insurance carriers, self-insured employers or insurers, third-party administrators handling claims on behalf of self-insured employers, as well as bill review companies. The organizations have widely differing technological capabilities, so the WCIS is designed to be as flexible as possible in supporting EDI medical transmissions. EDI is the computer-to-computer exchange of data or information in a standardized format. In California, workers’ compensation, medical EDI refers to the electronic transmission of detailed medical bill payment records information from trading partners, i.e., senders, to the California DWC.

The DWC incorporated the primarily technical changes to the California EDI Implementation Guide, Version 2.0 proposed by members of the workers’ compensation community, including these new proposed changes:

1) Adding a table showing California-adopted IK4 error codes for 999 acknowledgements
2) Editing the California Edit Matrix table to correspond to entries in the IK4 error code for 999 acknowledgements table
3) Further clarifying procedures for reporting lump-sum lien settlement payment data.

The DWC believes that these updates will allow WCIS to collect more robust and useful data that will assist with research regarding workers’ compensation issues. The notice and text of the regulations can be found on the proposed regulations page.

The California workers’ compensation community recently learned of questions raised about the authenticity of surgical screws used in spine implants at various hospitals in Southern California as a result of litigation brought by claimants who claim they received counterfeit hardware implants. The topic of questioning the manufacturing credentials of medical suppliers is now proving to potentially have significant benefits in claims administration strategies. It may be important to know more about what is at the forefront of implant technologies so that better treatment choices can be made. Unfortunately, the UR/IMR process typically answers the question “should someone have a surgery?” but typically omits answering the question “what brands of surgical implant devices are the best choice for the job?” To add to our knowledge about the surgical implant industry, here is some news about the latest surgical products recently approved by the FDA for spine surgeries.

The MEDICREA group, a company that specializes in the development of personalized implants produced for a patient’s specific need in the treatment of spinal pathologies, has announced the company has received 510(k) clearance from the U.S. Food and Drug Administration for UNiD, the world’s first patient-specific spinal osteosynthesis rod. The technology will be premiered at the 2014 North American Spine Society (NASS) Annual Meeting taking place on November 12-15 in San Francisco. The first U.S. patient underwent surgery to have personalized UNiD rods implanted earlier this month in New York.

UNiD is the first patient-specific device cleared to treat degenerative spine conditions including scoliosis and other type of deformities. According to the National Scoliosis Foundation, an estimated six million people in the U.S. have scoliosis. Each year scoliosis patients make more than 600,000 visits to private physician offices, and an estimated 38,000 patients undergo spinal fusion surgery. Adult spinal deformity surgery is likely to increase in frequency with as much as 32 percent of the adult population suffering from scoliosis and a prevalence of 60 percent among the elderly. Hospital costs of adult spinal deformity surgery can exceed $100,000 per patient. Revisions and reoperations place a large financial burden on the health care system – increasing the average cost of adult spinal deformity surgery by more than 70 percent.

UNiD patient-specific rods are universal implants available in two alloys (Titanium TA6V ELI/Cobalt Chromium) and two diameters (5.5 mm/6 mm), that match global standards. UNiD naturally fits into the PASS LP® thoraco-lumbar fixation system. The PASS LP® system is already used by numerous spine surgeons in 35 countries, and notably in the United States where this product accounts for the majority of MEDICREA USA Corporation’s sales. MEDICREA’s customized spine implant platform also includes the UNiD anterior lumbar interbody fusion (ALIF) spine cages created with a 3-D printer. With the support of specific software and advanced imaging, the UNiDTM ALIF customized cages made of Poly Ether Ketone Ketone (PEKK) exactly reproduce the anatomic details of a patient’s vertebral endplates. The world’s first spinal fusion surgery using the UNiD ALIF customized 3-D printed spine cages was performed on May 28, 2014 in France.

UNiDTM features a software tool to help surgeons preoperatively plan their surgery and order customized, industrially-produced rods to fit the specific spinal alignment needed for each individual patient. UNiDTM eliminates the need to manually contour a rod during surgery, providing surgeons with a precisely aligned rod prior to surgery and reducing the amount of time patients spend in the operating room, which directly impacts infection rate and quality of recovery.

The customized rod, according to the manufacturer, claims to offer numerous benefits to surgeons and patients undergoing spine surgery. The primary benefit is it allows surgeons to plan and then execute their operating strategy without compromises or approximation errors. Surgeons can improve their success rate in terms of global sagittal patient alignment, and reduce the risk of spinal implant failure.