Author: WorkCompAcademy

S.B. 863 requires lien claimants to pay an activation fee prior to attending a lien conference, and a filing fee for filing new liens. The panel decision in the case of Jose Pedro Soto v Marathon Industries Inc. held that lien claims are properly dismissed when the activation fee is paid a few hours late.

Jose Pedro Soto claimed to have sustained industrial injuries to his back. He settled his cases by Compromise and Release approved by Order Approving Compromise and Release dated September 6, 2012. On November 29, 2012, defendant filed a Declaration of Readiness to Proceed requesting a lien conference. A lien conference was scheduled for January 10, 2013.

After passage of S.B. 863, Labor Code Section 4903.06(a)(4), effective January 1, 2013, provides: “All lien claimants that did not file the declaration or readiness to proceed and that remain a lien claimant at the time of a lien conference shall submit proof of payment of the activation fee at the lien conference. If the fee has not been paid or no proof of payment is available, the lien shall be dismissed with prejudice.”

Administrative Director Rule 10208(a), operative January 1, 2013, provides in relevant part: “No lien claimant that is required to pay an activation fee shall file a declaration or readiness or participate in any lien conference including obtaining an order allowing its lien in whole or in part, without submitting written proof of prior timely payment of the fee, or without electronic proof of timely payment of the fee that is available to the judge and parties at the conference. ‘Prior timely payment’ means payment of the activation fee (1) prior to the filing of a declaration filing a declaration of readiness, or (2) prior to an appearance at a lien conference by a lien claimant of record that did not file the declaration of readiness.”

The lien conference was scheduled for 8:30 a.m. The lien claimants in that case paid the activation fee between 10:56 and 11:06 a.m. on that day. Pursuant to Rule 10208(a), payments of the fees were not “prior timely payments.” In order to have been “prior timely payments,” the payments would have had to be made prior to 8:30 a.m. on the date of the lien conference. Therefore, the liens were properly dismissed at the lien conference on January 10, 2013.

The WCAB reinstated the Orders Dismissing Liens of Pacific Orthopedic and Rehabilitation, Vanguard Psychiatric, National Duramed, LA Mediwave, Inc., Westside Wilshire Medical Center, Orthopedic Rehabilitation of San Fernando Valley, Marina Russman, M.D., Jan Medical Equipment, Healthcare Interpreting, and Global Interpreting dated January 10, 2013.

Treatment by network physicians is becoming increasingly prevalent in California workers’ compensation, with new data showing that nearly 80 percent of first-year physician-based outpatient medical services for 2010 California work injuries was provided by physicians who are part of a medical network – up from just over half of the services in 2004 – a trend that has grown steadily since 2004 legislative reforms extended medical control for employers that offer Medical Provider Networks.

Looking at first-year medical service data from more than one million claims for California work injuries occurring between 2004 and the third quarter of 2011, the authors calculated and compared the percentage of injured worker outpatient treatment visits to network providers before and after MPNs began operating in January 2005. The results show that the use of network providers for first-year physician services increased from 51 percent for 2004 work injuries to nearly 2/3 of the services for 2005 injuries – indicating an initial surge as first-year treatment shifted to MPNs. The latest figures confirm that the trend has continued, with networks accounting for 8 out of 10 physician-based services for 2010 injuries.

Prior to MPNs, employers usually controlled their injured workers’ treatment for 30 days after the injury, but with the advent of MPNs, medical control was extended to the life of the claim for employers that offered these networks. To determine how much of the increase in first-year network physician use is associated with the expansion of employer medical control, the study measured changes in the percentage of services by network providers within and beyond 30 days of injury. For pre-MPN (accident year 2004) claims, network providers rendered about 70 percent of physician-based outpatient medical services in the first 30 days post injury, while the latest data (claims for injuries from the first three quarters of 2011) show that rate is now 86.5 percent. At the same time, however, the network provider utilization for services beyond 30 days post-injury has nearly doubled from around 39 percent for AY 2004 claims to about 76 percent for AY 2010 claims, suggesting that the expansion of medical control under MPNs has been the primary factor behind the growing use of network providers in California worker’s compensation.

The research also shows that overall, the increasing share of first-year treatment payments to network providers has tracked with the growth in utilization. Payments to network providers rose from less than 40 percent of total reimbursements for first-year visits for 2004 injuries to nearly 54 percent for 2005 injuries, then continued to trend up, increasing to nearly 72 percent of the payments for first-year services for 2010 injuries.

Again, this growth was primarily driven by payments to network providers for services after the first 30 days, which more than doubled from less than 32 percent of the payments on AY 2004 claims, to more than 67 percent of the payments for AY 2010 claims.

The Institute has published the results of the study in a Research Update, which includes data tables showing AY 2004 – 3Q2011 network provider utilization rates and the proportion of payments for physician-based treatment within and beyond 30 days of injury. Results are also broken out separately for three major treatment categories: Evaluation and Management; Surgery Services (excluding injections); and Physical Therapy.

Thomas Alberda began work as a full-time Fresno County deputy sheriff in 1993. Before his employment, Alberda had two surgeries on his right knee: The first, in 1981, was to repair damage he sustained when he dislocated his right knee while playing high school basketball; the second, in 1984, was to remove a chip in the right knee which occurred while playing basketball. The knee did not require ongoing treatment; Alberda passed his Fresno County pre-employment physical as well as the physical requirements of the law enforcement academy.

In May 1995, Alberda hyper-extended his right leg while on duty, causing an internal derangement that required surgery, which Malcolm E. Ghazal, M.D. performed that month. Before the surgery, Dr. Ghazal advised Alberda that while the surgery would relieve his immediate symptoms, he had underlying arthritis in his knee which would continue to worsen with time and eventually could require a significant surgical procedure. Dr. Ghazal, however, hoped such a surgery could be deferred for “many years to come.” In August 1995, Alberda returned to full duty without restriction.

Sometime in 2003, Alberda, who is six feet, seven inches tall, was assigned a smaller patrol vehicle in which he did not comfortably fit; while he could work, his knees were crammed into the dashboard. After about a year, he began having severe problems with both knees and was in continual pain. He stopped working in June 2005 due to the pain in his knees and sought treatment from Marc Johnson, M.D. Orthopedic surgeon Ronald R. Castonguay, M.D. performed surgeries to repair meniscus tears on both of Alberda’s knees: the first, on September 16, 2005, was on his right knee, and the second, on October 28, 2005, was on his left knee. Alberda did not recall any specific injury to his left knee during his career, although he recalled an instance in 2001 in which he went to the hospital after he had “gone down hard” on the left knee while arresting a suspect. He thought a report of the incident had been prepared, but one was never located.

In March 2007, Alberda filed an application for a service-connected disability retirement. On April 4, 2008, the Board denied the application and instead approved the grant of a non-service connected disability retirement if Alberda wished to apply for one. Alberda submitted a request for a hearing on the Board’s decision, which was held on March 8, 2010.

The hearing officer found that Alberda’s permanent incapacity was not the result of injury or disease arising out of and in the course of his employment, and that his employment did not contribute substantially to his disability concluding that “[Alberda] had a lot of degenerative problems and it is reluctantly concluded that it is those problems and not the 1995 trauma and the 2003 assignment that led to his 2005 incapacity. The preponderance of the evidence does not establish that [Alberda]’s employment contributed substantially to his permanent incapacity. The causal connection between the job and the disability must be real and measurable and substantial and such is not found to be the case herein.”

The Superior Court affirmed the hearing officer stating “the standard of review was independent judgment, in which the trial court must afford a strong presumption of correctness concerning the administrative findings and the party challenging the administrative decision bears the burden of convincing the court the findings are contrary to the weight of the evidence.”

The Court of Appeal in the published opinion of Thomas Alberta v Board of Retirement of Fresno County Employees’ Retirement Association reversed and remanded the case.

Instead of undertaking an independent determination of whether Alberda’s disability was service-connected, the trial court denied the petition after concluding substantial evidence supported the hearing officer’s finding on that issue.

“The trial court’s written order demonstrated it did not review the Board’s decision in the required manner. While the trial court began the statement of decision by stating the correct standard of review, i.e. independent judgment, it went on to say that “substantial evidence supports the hearing officer’s decision” that Alberda was not entitled to service-connected disability retirement benefits, that “substantial evidence supports” that the 1995 injury and the 2003 assignment to a smaller squad car did not contribute substantially to Alberda’s incapacity, and “[s]ubstantial evidence supports the hearing officer’s finding” that Alberda’s degenerative problems led to his disability.

The Medical Board of California has largely failed to implement key provisions of a law intended, in part, to provide consumers with better information about physician-owned, outpatient surgery centers according to the article on the Public Radio (KPCC) website. Senate Bill 100 requires the Medical Board of California to “obtain and maintain” a list of accredited outpatient settings, including the names of all doctor-owners and their medical license numbers. The board must post that information on its website, which must also note whether a facility has had its accreditation suspended or revoked. But the medical board has yet to fully implement those provisions, which became law on Jan, 1, 2012. The information is not only hard to locate on the medical board’s site, but that contains a jumble of mostly incomplete records that provide little value to the public.

KPCC reviewed 100 surgery centers listed on the site; only 14 included the name of a doctor-owner, and only five provided the doctor-owner medical license number as required by California Health and Safety Code Section 1248.2 (b). Also missing from most of the records listed was information on whether a surgery center had its accreditation suspended or revoked. Consumers Union also reviewed the listing of surgery centers on the medical board’s website, and got similar results.

“Of the first 25 that came up, 18 of them did not have the name of the doctor who owned it, which is a pretty critical piece of information for consumers and for any kind of accountability,” said Lisa McGiffert, director of Consumer Union’s Safe Patient Project, a national campaign that for the past year has focused on oversight of California’s physician-owned surgery centers.

“This is an absolute failure to comply,” said Los Angeles consumer attorney Kathryn Trepinski, who testified in Sacramento last year on behalf of SB100. Trepinski represents Betty Brown of Torrance, whose sister died in December 2010, three days after undergoing lap-band weight-loss surgery at a physician-owned surgery center in Beverly Hills owned by brothers Michael and Julian Omidi. The Omidis were behind the once-popular 1-800-GET-THIN campaign. Brown has filed a wrongful death lawsuit against the Omidis.Trepinski said she was disturbed to find the website listing for the clinic did not mention the Omidis or any other owners. Without such information, she says, consumers checking out the center may be hard-pressed to learn that the medical board revoked Julian Omidi’s license to practice in 2007 and suspended Michael’s Omidi’s license in 2008, for three years.”People need to know the identities of physicians who own and run these centers so they can check their disciplinary records and their backgrounds,” she said. “This is a key part of patient safety and it’s important public health information.”

In an interview with KPCC, Medical Board of California Executive Director Linda Whitney acknowledged the website is incomplete and problematic. “It’s not the most consumer-friendly, I do admit that,” said Whitney, who noted that the agency is currently carrying out an agency-wide overhaul of its computer system. “So, unfortunately, it has not been the highest priority to refine that website. In the coming year we hope to make it much more consumer friendly,” she said.

Whitney said the website doesn’t have a complete list of surgery centers because her board told accrediting agencies that they don’t have to provide the data on a particular facility until its accreditation comes up for renewal. The agencies hadn’t collected owner information before, so this approach was designed to give them time to figure out best how to get it, she said. But because surgery centers’ accreditation comes up for renewal only once every three years, some of the information won’t get to the medical board – or consumers – until 2015.

A federal jury has convicted a Buena Park doctor for participating in a health care fraud scheme involving unnecessary procedures and prescriptions that led to Medicare paying out nearly $3 million on fraudulent claims for durable medical equipment and nutritional supplies.

Following a five-day trial, Dr. Augustus Ohemeng, 62, was found guilty of six counts health care fraud.

While serving as medical director at Pacific Clinic in Long Beach, Ohemeng and others recruited Medicare patients and billed the national healthcare program for office visits that typically included unnecessary tests and procedures. The evidence presented at trial showed that Ohemeng also generated fraudulent prescriptions for medical equipment, power wheel chairs and enteral nutritional supplies, prescriptions that were sold to medical supply companies that used the fraudulent documents to bill Medicare for millions of dollars of unnecessary and undelivered medical supplies. “Nearly all, if not all, of the wheelchair prescriptions Ohemeng and [George Tarryk, another doctor who worked at Pacific Clinic] signed were written for people who could walk,” according to court documents.

Over the course of four years, Ohemeng signed hundreds of these fraudulent prescriptions, many of which were blank so his office manager could fill in the details.

As a result of the fraudulent conduct involving Ohemeng and his co-conspirators, which took place from February 2005 through September 2009, $5.6 million in fraudulent claims were submitted to Medicare, which paid approximately $2.97 million.

As a result of the guilty verdicts, Ohemeng faces a maximum statutory sentence of 60 years in federal prison when he is sentenced on June 17 by United States District Judge Christina A. Snyder.

Ohemeng was among 10 defendants – including two doctors and a nurse – who were charged as a result of an investigation into Pacific Clinic, Ivy Medical Supply in Anaheim and Santos Medical Supply in South Los Angeles. All 10 defendants, including the owner of Ivy Medical Supply, have now been convicted, either as the result of guilty pleas or jury verdicts.

The investigation in this case was conducted by the Federal Bureau of Investigations and the Office of Inspector General for the U.S. Department of Health and Human Services.