Author: WorkCompAcademy

Noe Morales claims he sustained an injury on March 23, 2011 while employed by FMF Racing. Applicant testified that he hurt his elbow at work when he was working with a hammer and missed hitting a part, but the hammer kept going and he felt his elbow pop. Though he acknowledged that he was aware of the company policy to report injuries immediately, he did not report his injury at work that day. Because his arm hurt and was swollen, he did not go to work the following day. However, he did not seek medical treatment, testifying that he was waiting for his employer to check it out and send him to a clinic. He testified that he called into work the next morning and left a message on an answering machine to report that he hurt his elbow and was not coming into work. The employer denies knowledge any such phone call.

He returned to work around 6:00 am on the third day, still having pain in his right elbow. Though he testified that he did not seek medical treatment the previous day because he was waiting to inform his employer and be sent to a medical clinic, he did not tell his supervisor, Mr. Raul Ruiz, that he had injured his elbow on March 23, 2011. He did not tell anyone at the company why he missed work the day before, because he had already left the message. He did not confirm with anyone whether the message he left the day before had been received. He worked until 2:30 in the afternoon, when he was called into the office for a meeting with Mr. Beck, the Human Resource Manager, who told him that he was being terminated because he did not come into work the day before. Applicant testified that he offered to show them his cell phone to show that he had called in on March 24, but they did not want to see it. Applicant acknowledged that he had been repeatedly written up for being tardy or absent. He was given warnings and placed on probation in 2006, 2008 and 2010. He was suspended from work for one week on December 27, 2010, for chronic absenteeism. According to Mr. Beck, applicant begged for his job back. and when told he could not have it back, applicant reported the injury to his right elbow.

The essential question in this case is whether the evidence demonstrates that the employer had knowledge of applicant’s claim of injury prior to, or subsequent to, applicant’s notice of termination. While initially concluding in a Findings and Order issued July 30, 2012, that applicant’s claim is barred, the WCJ reversed himself and issued the instant determination in which he found the prior notice requirement was satisfied by the injured worker’s report of his injury contemporaneously with the notice of termination. The employer filed a petition for reconsideration which was granted, and the WCAB reversed the finding in the panel decision of Noe Morales v FMF Racing and Westland Insurance.

Labor Code section 3600(a)(10) provides that no compensation shall be paid for an injury that occurs prior to a notice of termination unless applicant establishes that the employer received notice of the injury prior to the notice of termination, or there are medical records that contain evidence of the injury prior to the notice of termination. Here, in contrast to Dover v. Fresh Start Bakeries, Inc. (2006) Cal.Wkr. Comp. P.D. LEXIS 53, wherein the bar of Section 3600(a)(IO) was held inapplicable where the injured worker gave notice of his injury at his first opportunity, which was contemporaneous with his notice of termination, applicant’s delay in notifying his supervisor of his injury was not caused by his supervisor’s absence from work. There is no evidence that applicant was incapable of reporting his injury on March 23, 201. In fact, he testified that he was aware of his employer’s policy that he should report his injury immediately. Applicant has offered no reason for his failure to comply with this policy on March 23, 2011.

On these facts, the WCAB found that the employer’s affirmative defense of a post-termination claim should be sustained. Accordingly, the Panel granted defendant’s petition for reconsideration and amended the Joint Findings and Award to find applicant’s claim of injury on March 23, 2011 is barred under Labor Code 19 section 3600(a)(l0).

The National Football League and thousands of former football players who have sued the league for allegedly hiding the dangers of brain injury while profiting from the sport’s violence have been ordered to try to resolve the case in mediation. U.S. District Judge Anita Brody in Philadelphia federal court, who is overseeing the litigation, on Monday ordered both sides to meet with mediator Layn Phillips, a retired federal judge, in an effort to settle the dispute. In the brief order, Brody said she would hold off on ruling on the NFL’s motion to dismiss the case until September 3 to give the two sides an opportunity to make progress. Many of these former players also have claims pending before the California WCAB.

More than 4,000 players have accused the league of glorifying football’s ferocity while concealing the risks of concussions and long-term brain damage as a result of repeated hits to the head. The league has said it disclosed what information it had regarding research into brain trauma. It has also argued that the lawsuit is inappropriate because the issue of player safety is governed by the collective bargaining agreements negotiated between the league and the players’ union.

Phillips, currently a partner in the California law firm Irell and Manella, served four years as a federal judge in Oklahoma City. The case is In re National Football League Players’ Concussion Injury Litigation, U.S. District Court for the Eastern District of Pennsylvania, No. 12-2323.

And Bloomberg News reports that former National Football League players Courtney Anderson, Larry Centers and others settled a dispute with the organization over an arbitration decision that bars them from seeking workers compensation in California. Dozens of players sued in federal court in San Francisco seeking to overturn the arbitration order. The “cases fully settled as to all plaintiffs except for plaintiff Sean Berton,” according to a filing after a 45-minute settlement conference. The document didn’t provide details.

The players were required under a December arbitration award to withdraw claims in California and banned from claiming they are entitled to the benefits, according to the complaint filed by Centers in February.

Greg Aiello, an NFL spokesman, had no immediate comment. Margaret Prinzing and Roy LaFrancis, attorneys for the ex-players, didn’t immediately respond to an e-mail message seeking comment on today’s filing. The cases are Centers v. National Football League Management Council, 13-00882, and Anderson v. National Football League Management Council, 12-06386, U.S. District Court, Northern District of California (San Francisco).

The U.S. Food and Drug Administration has approved Swedish drugmaker Orexo AB’s drug to treat opioid addiction. The tablet, Zubsolv, dissolves under the tongue. It combines the drugs buprenorphine and naloxone and will compete with similar products, Subutex and Suboxone, made by Britain’s Reckitt-Benckiser Group Plc. Orexo said its drug offers a benefit to patients over Suboxone because less is required to achieve the same effect. It also has a menthol flavor that it said patients in a study preferred.

According to the report in Reuters Health, nearly three out of four prescription drug overdoses are caused by painkillers known as opioids that include such drugs as oxycodone, hydrocodone, fentanyl, methadone and codeine, according to the Centers for Disease Control and Prevention, and since 2003 have caused more overdose deaths than cocaine and heroin combined.

In March, the FDA rejected a drug similar to Orexo’s from Titan Pharmaceuticals Inc and asked for additional data proving it worked. Titan’s drug, Probuphine, is a long-acting version of Suboxone that is implanted under the skin.

To date, the market for buprenorphine has been dominated by Reckitt, a consumer goods company whose products range from cleaning supplies to condoms. Suboxone and Subutex generated sales of roughly $1.3 billion in 2012.

Orexo said opioid dependence affects nearly 5 million people in the United States and that only 20 percent receive treatment. The company said it expects peak sales of the drug to be at least $500 million.

Suboxone and Subutex lost market exclusivity in 2009, and while generic competitors introduced cheap copies of Subutex, they were slow to develop alternatives to Suboxone. In the meantime, Reckitt persuaded many physicians to switch from Suboxone tablets to Suboxone Film, a newer, patent-protected wafer-like strip that patients dissolve under the tongue. At the end of 2012, according to Reckitt, Suboxone Film had captured 64 percent of the market.

Earlier this year, the FDA approved generic versions of Suboxone tablets from Amneal Pharmaceuticals LLC and Actavis Inc. The agency also said, in April, that it would not approve any generic versions of the original form of OxyContin, which could be crushed and snorted for a quick high. OxyContin’s maker, Purdue Pharma LP, stopped shipping its branded version of the drug in August. It now sells a reformulated version that is less easy to abuse.

The Insurance Journal reports that the S.B. 863 lien provisions seem to be reducing costs. EMPLOYERS Insurance, a monoline workers’ comp carrier that conducts more than 60 percent of its business in California, where it also sees more than half of its claims, is reporting that the lien fees are already easing the company’s losses. “It will save us on medical costs, and it will save us on defense costs,” said Christina Ozuna, vice president of claims for the Western Region for EMPLOYERS. Ozuna said it’s too soon to provide estimates on how much cost savings there will be, but she said they will be worth noting. “We believe we’re going to have significant cost savings,” she said.

Those savings should continue due to the January en banc decision in the case of Figueroa v. B.C. Doering Co., in which the WCAB detailed the process for lien activation and the consequences for not activating a lien prior to a lien conference set after 2013. The WCAB ruled the lien activation fee must be paid prior to the commencement of a lien conference, and if the lien claimant fails to pay, its lien must be dismissed with prejudice. In Figueroa WCAB ruled the judge was required to dismiss the case and that the failure to enter into negotiation or provide a proper notice is not excuse from paying the fee.

Operationally, carriers like EMPLOYERS will still be required to negotiate, Ozuna said, adding, “but going forward we’ll see many liens fall out of the system.” She added, “We’re seeing many, many dismissals of liens out of the system.” The dismissals are having a direct impact on EMPLOYERS by reducing the cost of defense of these liens, however some people are still poking at the loopholes in the lien filing process, she said. Instead of liens, many copy services and interpreting agencies with charges they want paid have acted to avoid the fees by instead filing petitions for costs. “Their argument is they are not medical providers and are not trying to provide claim for cost in the form of a lien,” Ozuna said. “This is their effort to sort of get outside of that.”

As far as liens go, Estelle Freeman, claims supervisor for Carl Warren and Co. in Tustin, Calif. said, while the organization has not felt the full impact of the new law, she’s noticed some changes. “I have noticed a lot more lien claimants trying to aggressively settle their liens before the case goes to a hearing to avoid paying the lien filing and/or lien activation fee,” Freeman said.

In fact, it appears that in 2012 in anticipation of the lien fees taking affect several lien filers got aggressive and made their claims as soon as possible, according to WCIRB’s Actuarial Committee. According to the committee, there was a sharp increase in lien filings in the fourth quarter of 2012 in anticipation of new lien filing and activation fees as part of SB 863. Citing Department of Workers’ Compensation data, WCIRB notes that nearly 1.2 million liens were filed in 2012 compared with less than 500,000 in 2011.

The lawmaker who originally introduced the lien filing fees before they were integrated into the workers’ comp reform bill was state Sen. Ted Lieu, D-Torrance, who had intended the bill to eliminate some of these loopholes that allow people to game the system. However, there was one thing he didn’t intend, and that was to make the fees retroactive. To fix that Lieu has authored cleanup legislation, Senate Bill 258, which clarifies that liens assigned prior to Jan. 1, 2013 can still be pursued even if the medical provider is still in business. “To do otherwise would probably be unconstitutional,” said Ray Sotero, a spokesman for Lieu.

The Office of Administrative Law has granted the Division of Workers’ Compensation’s requests for readoption of the six sets of emergency regulations that implemented major reform provisions of Senate Bill 863: supplemental job displacement benefit vouchers, interpreter services, qualified medical evaluator regulations (QME), independent medical review (IMR), independent bill review (IBR) and lien filing fee regulations. The emergency regulations, which were initially approved by OAL on Jan. 1, will remain in effect until Oct. 1, unless another 90-day readoption is requested.

On July 1, DWC filed its certificate of compliance for the interpreter services with OAL and requested an Oct. 1 effective date. DWC expects to issue revised supplemental job displacement benefit voucher regulations for a 15-day comment period this week. In the near future, DWC will also issue revised QME revised QME, IMR, IBR and lien filing fee regulations for 15-day comment periods.

DWC will continue to keep the public informed regarding its progress with the ongoing regulatory process.