Author: WorkCompAcademy

The Office of Administrative Law (OAL) has approved the Division of Workers’ Compensation’s (DWC) final version of the Copy Service Fee Schedule. The effective date of the regulations is July 1, 2015.

“The new copy service fee schedule, which was mandated by SB 863, is a flat $180 fee for a set of records from a single custodian. By reducing the items and services that can be separately billed, we expect fewer disputes and prompter payments. If there are disagreements about a copy service bill, the disputes can now be handled through Independent Bill Review instead of the more time consuming and costly lien process,” said DWC Administrative Director Destie Overpeck.

The Copy Service Fee Schedule regulations include the following:

1) Instead of a per-page fee and itemized fees for subpoena preparation, mileage, and other related fees, a flat fee of $180 covers records of 500 pages and under and includes mileage, postage, delivery, phone calls, page numbering, witness fees, release of information fees, and subpoena preparation.
2) Separate charges are allocated for cancellations, certificates of no record, for records obtained from EDD and WCIRB, and for additional sets for records.
3) For copies above 500 pages, an additional 10 cents a page is allowed.
4) Bills for copy services must include provider tax ID numbers, professional photocopier numbers, and claim numbers and may include newly-created billing codes.
5) DWC fees for transcripts will no longer be estimated. It will cost $100 to order a transcript of 33 pages and under; transcripts over 33 pages will cost an additional $3 a page. DWC fees for Public Records Act requests requiring staff research will be charged at $85 an hour instead of $40.
6) DWC can dispose of paper adjudication documents after 20 years.

Although the Fee Regulations become effective on July 1, claim administrators should be aware that photocopiers are already regulated by statute in California. A “professional photocopier” is defined by section 22450 of the Business and Professions Code. This code requires that a professional photocopier shall be registered by the county clerk of the county in which he or she resides or has his or her principal place of business, and in which he or she maintains a branch office. A certificate of registration shall be accompanied by a bond of five thousand dollars ($5,000) which is executed by a corporate surety qualified to do business in this state and conditioned upon compliance with the provisions of this chapter and all laws governing the transmittal of confidential documentary information. The county clerk shall maintain a register of professional photocopiers, assign a number to each professional photocopier, and issue an identification card to each one. Additional cards for employees of professional photocopiers shall be issued. A professional photocopier shall be responsible at all times for maintaining the integrity and confidentiality of information obtained under the applicable codes in the transmittal or distribution of records to the authorized persons or entities. At least one person involved in the management of a professional photocopier shall be required to hold a current commission from the Secretary of State as a notary public in California.

All records transmitted or distributed by a professional photocopier shall be accompanied by a certificate containing the name, address, and registration number and county of registration of the professional photocopier as well as other mandated information specified in Business and Professions code 22462. A failure to comply with the professional photocopier requirements shall be punishable as a misdemeanor. It would be advisable for claim administrators to verify that all photocopied records comply with these provisions.

The text of the copy service fee regulations can be found on the DWC website..

A San Francisco janitor who had his face slashed by a passenger while working a nightshift as an UberX driver has filed a lawsuit seeking workers compensation insurance coverage from Uber Technologies, the ride hailing platform that classifies its drivers as independent contractors. The lawsuit, which was filed by Abdo Ghazi in San Francisco Superior Court on April 28, is seeking class action status as well as an injunction, damages and penalties against Uber.

According to the report in Biz Journals, it is the latest in a line of similar lawsuits with potentially far reaching implications for the on-demand economy that have been filed against Uber and other new tech platforms insisting that the workers providing the actual services they advertise be treated as employees. “Uber’s misclassification of drivers as independent contractors gave it an unfair advantage over competing transportation companies, harmed Uber drivers, and violated state law,” the suit claims. Even short of getting employment status, Ghazi’s suit demands that he be given workers compensation benefits, something that is allowed for and in some cases mandated even when workers are not considered employees, as is the case for taxi drivers in California.

San Francisco taxi officials say workers’ compensation coverage costs nearly $5,000 per cab a year, and they have long complained that it is unfair that taxi companies must provide drivers with workers compensation coverage while there is no similar requirement for drivers for Uber and similar on-demand platforms like Lyft and Sidecar, all of which are regulated by the state Public Utilities Commission.

Ghazi, 56, suffered a broken nose and four puncture wounds to his nose and mouth when he was attacked without provocation in the Richmond District by a male passenger shortly after midnight on Nov. 23, according to his complaint. David Lin, 26, fled after attacking Ghazi and was later taken into custody after attempting to break into someone’s house, a police spokesman said. He has been charged with one count of assault with force likely to cause great bodily injury, one count of battery with serious bodily injury, and one count of false imprisonment and has entered a plea of not guilty. Ghazi’s attacker was allegedly one of three people, including two men and woman, who originally got into Ghazi’s car at about midnight, said Conor Granahan, one of Ghazi’s attorneys. Ghazi was driving his Toyota Sienna and getting ride referrals through Uber’s UberX service, which enables people using a smartphone application to drive for hire using their own vehicles.

After dropping off one man and the woman, Ghazi was taking his remaining passenger toward Clement Street and 18th Avenue when the man suddenly leaped into the front seat and started punching Ghazi without warning, repeatedly striking Ghazi’s face while pulling on his seatbelt so he could not escape, Granahan said. Ghazi’s lip and chin were punctured by something sharp during the attack and he was taken to a local hospital where he was stitched up, and he still has “swelling and other issues with his mouth” as well as post-traumatic stress disorder, according to Granahan. He will need subsequent medical care, his suit states.

The result was that Ghazi, a resident of the Tenderloin, was off work for nearly two months from both Uber and also from his day job as a custodian at a downtown building, though he has since returned to both positions, Granahan said. Ghazi previously worked as a taxi driver at night, but when his earnings plummeted as a result of Uber’s impact on the market, he switched in June 2014 to the Uber platform, his complaint states.

Alec Segarich, another of Ghazi’s lawyers, who specializes in employment law, said he was aware of other lawsuits like Ghazi’s that are seeking employee status and have been filed against other tech-enabled companies which claim they are simply a communication platform to connect customers with independent contractors providing services ranging from house cleaning to grocery delivery. Other San Francisco firms named as defendants in such cases include Caviar (owned by payments provider Square), Homejoy, Instacart, Lyft and Postmates.”Our legal theory is that not providing workers compensation and misclassifying workers is an unfair business practice,” Segarich said.

“A lot of companies are trying to get out of pretty basic employment rights that have been around for a century. We think that just because you have an app it doesn’t change the employer-employee relationship, and that’s a lot of what this lawsuit is about.”

Traditionally, claim administrators project the cost of a lifetime award using statistical actuarial tables that predict life expectancy based upon historical data. The settlement value of a workers compensation claim also considers the expected lifetime cost of the claim. But now, researchers say it may be possible to slow and even reverse aging by keeping DNA more stably packed together in our cells. Perhaps evaluating the cost of settlement value of a claim is getting far more complicated than just using an actuarial table.

In a breakthrough discovery, scientists report that they have found the key to keeping cells young. In a study published Thursday in Science, and reported by Time Magazine, an international team, led by Juan Carlos Izpisua Belmonte at the Salk Institute, studied the gene responsible for an accelerated aging disease known as Werner syndrome, or adult progeria, in which patients show signs of osteoporosis, grey hair and heart disease in very early adulthood.

These patients are deficient in a gene responsible for copying DNA, repairing any mistakes in that replication process, and for keeping track of telomeres, the fragments of DNA at the ends of chromosomes that are like a genetic clock dictating the cell’s life span. Belmonte – together with scientists at the University Catolica San Antonio Murcia and the Institute of Biophysics at the Chinese Academy of Sciences – wanted to understand how the mutated gene triggered aging in cells. So they took embryonic stem cells, which can develop into all of the cells of the human body, and removed this gene. They then watched as the cells aged prematurely, and found that the reason they became older so quickly had to do with how their DNA was packaged.

In order to function properly, DNA is tightly twisted and wound into chromosomes that resemble a rope in the nucleus of cells. Only when the cell is ready to divide does the DNA unwrap itself, and even then, only in small segments at a time. In patients with Werner syndrome, the chromosomes are slightly messier, more loosely stuffed into the nuclei, and that leads to instability that pushes the cell to age more quickly. Belmonte discovered that the Werner gene regulates this chromosome stability. When he allowed the embryonic stem cells that were missing this gene to grow into cells that go on to become bone, muscle and more, he saw that these cells aged more quickly. “It’s clear that when you have alterations in [chromosome stability], the process of aging goes so quickly and so fast that it’s tempting to say, yes, this is the key process for driving aging,” says Belmonte.

Even more exciting, when he analyzed a population of stem cells taken from the dental pulp of both younger and older people, he found that the older individuals, aged 58 to 72 years, had fewer genetic markers for the chromosome instability while the younger people aged seven to 26 years showed higher levels of these indicators.

“What this study means is that this protein does not only work in a particular genetic disease, it works in all humans,” says Belmonte. “This mechanism is general for aging process.” Before it can be considered as the Fountain of Youth, however, Belmonte says new and better techniques need to be developed that can more specifically and safely alter the Werner gene in people, not just a culture dish of human cells. He also stresses that there may be other processes contributing to aging, and it’s not clear yet how important chromosome stability is compared to those factors. But, he says. “having technologies like this will allow us to determine how important each of these parameters are for aging.” And if the findings hold up, they could be first step toward finding a way to help cells, and eventually people, live longer.

Closer to home, Stanford University seems to agree with this science. Its website proclaims “”Now we have found a way to lengthen human telomeres by as much as 1,000 nucleotides, turning back the internal clock in these cells by the equivalent of many years of human life,” said Helen Blau, PhD, professor of microbiology and immunology at Stanford and director of the university’s Baxter Laboratory for Stem Cell Biology. “This new approach paves the way toward preventing or treating diseases of aging,” said Blau. “There are also highly debilitating genetic diseases associated with telomere shortening that could benefit from such a potential treatment.”

A recent paper, Red Herrings and Medical Overdiagnosis Drive Large-Loss Workers’ Compensation Claims published by Keith Rosenblum, senior strategist for Workers’ Compensation Risk Control in Lockton’s Kansas City operation describes what all risk and claims professionals see time and again. The common musculoskeletal injury where recovery stalls, no treatment works and the injury becomes a “creeping catastrophe.”

“Five percent of injured workers account for 80 percent of the cost and lost time in workers’ compensation systems” according to the American College of Occupational and Environmental Medicine. “The majority of these workers end up on long-term disability following injuries that would not be considered serious at their outset.” One-third of Social Security Disability’s recipients are receiving benefits because of musculoskeletal disabilities. Low-back injuries are the most costly, and the most researched, musculoskeletal conditions. Lockton’s large claims database indicates that low back injuries represent 20 percent of all loss dollars. When looking at claims over $250,000, they represent 25 percent of loss dollars.

Studies have shown that in the Medicare population, spinal imaging (especially MRI) rose by a dramatic 300 percent in the last decade reported (1994-2004). During that period, more diagnoses have been based on detected “abnormalities” with a corresponding 300 percent increase in aggressive and expensive treatment. As a consequence, costs have increased roughly tenfold. A similar expense in delivering invasive treatments solely from these imaging studies in workers’ compensation is creating more large loss claims.

These results, according to Lockton, are ‘grossly disappointing’ because outcomes for workers have not improved. In fact, the availability of more precise imaging has meant that workers are disabled longer than historical baselines. Disability rates among working age Americans are higher than at any time in our country’s history, and the problem is getting worse. According to Lockton, If images showing structural abnormalities have not improved results, it looks like patients and medical professionals are going down the wrong path.

Based on the latest science, the Lockton pager says that many of these diagnoses are red herrings. In medicine, a red herring is a diagnosis made based on poor science or inaccurate criteria. False certainty is created, and the search for the actual problem ends. In chronic pain cases, imaging findings are often red herrings. The real source of pain and distress usually lies elsewhere, being generated by soft tissue or by the brain itself, or a combination. Medical overdiagnosis occurs when a physician labels a condition more serious than it truly is, attributing a usually benign condition to causes more serious than the scientific data and situation warrant. The medical literature suggests that in more than 90 percent of common situations, an alleged diagnosis based on MRI “abnormalities” represents medical over-diagnosis.

The American College of Physicians and the American Pain Society put together an independent panel of experts to systematically review world literature concerning low-back pain. Their findings noted many asymptomatic volunteers have changes in their spines that look exactly the same on MRI as spines of people with pain. The panel recommended that many common low-back diagnoses be completely abandoned. These included lumbar disc protrusion, lumbar disc herniation, lumbar spondylosis, and others. The panel advocated that these entities be replaced by the term “nonspecific low-back pain.” This can be interpreted as an acknowledgement that most anatomically based “diagnoses” for pain confer no medical benefit to the patient..

As a solution, the authors of the Lockton paper have been actively following, assessing, and piloting the integration of one of the innovative new models in diagnostic technology that addresses potential chronic pain cases in their various stages of development. “We have been able to definitively identify which of several possible sources is creating a specific worker’s pain by integrating NeuroPAS Global’s NP3 testing methodology along with behavioral medicine assessment in some of our clients’ claims processes. The resulting clarity has enabled more workers to be referred for appropriate physical rehabilitation or cognitive behavioral therapy in lieu of surgery and chronic opioids.” Some insurance carriers and TPAs are working toward or are starting to pilot these technologies earlier in the life of a claim.

Lockton concludes “From a claims perspective, we believe that intervening early in the claim (2-4 weeks) by engaging physicians to comply with medical treatment guidelines, diagnose patients complaints based more on evidence-based medicine and less on imaging studies where not recommended, will make a substantial impact on the 5 percent of workers’ claims and their 80 percent of costs.

Tiffany Shorter, 26, and Jabe Satterfield, 77, owners of the Green Cactus Collective Medical Marijuana Dispensary in Palmdale, were arrested on multiple felony counts of insurance fraud. The owners failed to carry workers’ compensation benefits for their employees and allegedly told a security officer to lie about his employment status after he sustained severe injuries from two separate robberies at the dispensary, leaving him without benefits and responsible for expensive medical bills.

In November of 2013 Arcenio Tavares, a 34 year old security officer, was shot three times while suspects wearing bandanas and hoodies robbed the dispensary. After he spotted the three males approaching with guns in their hands he drew his handgun, but was shot multiple times by one of the suspects. Despite being hit by the bullets, Tavares returned fire and the suspects ran off on foot. Sheriff’s Capt. Don Ford said at the time that the dispensary itself was illegal because such businesses are not permitted in unincorporated Los Angeles County. Shorter and Satterfield allegedly told their employee to lie to hospital personnel by saying he was a volunteer and not an employee, which made him ineligible for workers’ compensation insurance benefits. The employee, without workers’ compensation benefits and in fear of losing his job, continued working.

In December of 2013, the dispensary was robbed again and the same employee, while still recovering from gunshot wounds from the prior attack, was beaten with a firearm and sustained further injuries. Again, the lack of coverage by his employers left him without medical benefits and liable for all medical expenses.

Shorter and Satterfield are facing up to four years in prison if convicted and were booked into the Los Angeles Sheriff’s Department Palmdale Station. The Los Angeles County District Attorney’s Office is prosecuting this case. Shorter and Satterfield are due to appear in court on May 18, 2015 at the Criminal Courts Building, Department 30.

The Green Cactus Collective was located at 36153 Sierra Highway in Palmdale. A new medical marijuana dispensary now occupies that location but the D.A.’s office said it is not known whether Shorter and Satterfield are associated with the new business.

“This case serves as a reminder that workers’ compensation fraud is a costly crime for employees who are left uncovered when their employers cheat the system,” said Insurance Commissioner Dave Jones. “The costs of these crimes are passed on to consumers through higher rates and premiums and drain the state’s economy of billions of dollars annually.”