Author: WorkCompAcademy

A WCAB panel in the case of Crispin Mendez-Correa v Vevoda Dairy elaborated on the elements necessary to hold an applicant personally liable for payment of his own self procured medical expenses for treatment outside of an MPN. The panel concluded that although the employer is not responsible for payment of the treatment, similarly the applicant is not personally liable for the treatment either unless he “intended” at the time to treat at his own expense.

This was an admitted injury claim that occurred in Humbolt County. Applicant obtained treatment within the MPN until he was MMI. Applicant then moved to Southern California where he obtained an attorney who designated Khalid Ahmed, M.D., as primary treating physician notwithstanding defendant’s objection that the doctor was not in defendant’s MPN. Numerous other non-MPN providers subsequently filed treatment, medical legal and other liens in the case. There was no evidence at trial that applicant chose to go outside of the MPN “at his own expense” instead of using the employer provided care. Indeed, the record did not reflect why he went outside the MPN except that his attorney sent him to a non MPN physician. He was ultimately awarded 7% permanent disability and future medical care.

With respect to the treatment liens, the WCJ stated that “the applicant, in designating Dr. Khalid Ahmed as his non-MPN PTP, obtained self-procured medical treatment outside defendant’s MPN at his own expense under Labor Code section 4605.” The WCAB panel agreed that the employer was not responsible, but reversed indicating “that the WCJ incorrectly concluded that any and all medical treatment obtained outside of a properly noticed MPN is necessarily self-procured by the injured worker at his own expense pursuant to section 4605. The WCAB panel concluded “that is not the law.”

When a provider treats an industrially injured worker and takes certain actions such as submitting reports and billing statements to the employers’ insurance carrier, accepting payment from that carrier and/or seeking to obtain payment by filing a lien claim, the WCAB obtains exclusive jurisdiction over the payment dispute. Regardless of whether a lien claim is filed, the injured worker is only liable for medical treatment of an industrial injury that he or she intended to self-procure at his or her own expense pursuant to section 4605. The Appeals Board is authorized by section 4903 to “hear and determine any issue growing out of a controversy as to whether or not the physician was supplied by the employer or chosen by the employee at his own expense.” However, the authority to determine if a bill is the injured worker’s obligation under section 4605 is not the same as exercising jurisdiction under section 4903 to allow and determine a lien against compensation.

“If applicant intentionally self-procured medical treatment pursuant to section 4605 he would be personally liable under that section for the cost of the treatment, and the Appeals Board would have no jurisdiction to determine its reasonable value or to hold defendant liable for it as part of the applicant’s workers’ compensation.” .. “However, in this case there is no evidence that applicant intended to self-procure medical treatment from any lien claimants at his own expense pursuant to section 4605 following his move to Southern California.”

An international team led by researchers at the University of California, San Diego School of Medicine reports that a single injection of human neural stem cells produced neuronal regeneration and improvement of function and mobility in rats impaired by an acute spinal cord injury (SCI). The findings are published in the May 28, 2013 online issue of Stem Cell Research and Therapy.

According to the summary published in Science Daily, Martin Marsala, MD, professor in the Department of Anesthesiology, with colleagues at UC San Diego and in Slovakia, the Czech Republic and The Netherlands, said grafting neural stem cells derived from a human fetal spinal cord to the rats’ spinal injury site produced an array of therapeutic benefits — from less muscle spasticity to new connections between the injected stem cells and surviving host neurons. “The primary benefits were improvement in the positioning and control of paws during walking tests and suppression of muscle spasticity,” said Marsala, a specialist in spinal cord trauma and spinal injury-related disorders. Spasticity — exaggerated muscle tone or uncontrolled spasms — is a serious and common complication of traumatic injury to the spinal cord. The human stem cells, said the scientists, appeared to vigorously take root at the injury site. “In all cell-grafted animals, there was robust engraftment, and neuronal maturation of grafted human neurons was noted,” Marsala said. “Importantly, cysts or cavities that can form in or around spinal injuries were not present in any cell-treated animal. The injury-caused cavity was completely filled by grafted cells.”

The rats received the pure stem cell grafts three days after injury (no other supporting materials were used) and were given drugs to suppress an immune response to the foreign stem cells. Marsala said grafting at any time after the injury appears likely to work in terms of blocking the formation of spinal injury cavities, but that more work would be required to determine how timing affects functional neurological benefit. The grafted stem cells, according to Marsala, appear to be doing two things: stimulating host neuron regeneration and partially replacing the function of lost neurons.

“Grafted spinal stem cells are rich source of different growth factors which can have a neuroprotective effect and can promote sprouting of nerve fibers of the host neurons. We have also demonstrated that grafted neurons can develop contacts with the host neurons and, to some extent, restore the connectivity between centers, above and below the injury, which are involved in motor and sensory processing.”

The scientists used a line of human embryonic stem cells recently approved for Phase 1 human trials in patients with chronic traumatic spinal injuries. Marsala said the ultimate goal is to develop neural precursor cells (capable of becoming any of the three main cell types in the nervous system) from induced pluripotent stem cells derived from patients, which would likely eliminate the need for immunosuppression treatment.

Pending approval by UC San Diego’s Institutional Review Board, the next step is a small phase 1 trial to test safety and efficacy with patients who have suffered a thoracic spinal cord injury (between vertebrae T2-T12) one to two years earlier, and who have no motor or sensory function at or below the spinal injury site. “This is exciting, especially because, historically, there has been very little to offer patients with acute spinal cord injury,” said study co-author Joseph Ciacci, MD, professor of surgery and program director of the Neurosurgery Residency at the UC San Diego School of Medicine. Ciacci, who is also chief of neurosurgery for the Veterans Affairs San Diego Healthcare System, will oversee the clinical trial at UC San Diego and the VA. Ciacci said if the initial study confirms safety and efficacy, as well as the viability of the implanted cells, neural regeneration and decreased spasticity, the protocol can be expanded to other patients with other forms of severe spinal cord injury.

The Division of Workers’ Compensation (DWC) has posted the 2012 Ethics Advisory Committee’s annual report on its Web site. The Workers’ Compensation Ethics Advisory Committee is a state committee, independent from the DWC, charged with reviewing and monitoring complaints of misconduct filed against workers ’ compensation administrative law judges. The nine-member Ethics Advisory Committee is required to make a public report each year summarizing activities in the previous calendar year.

As civil servants, the WCALJs are not subject to review by the California Commission on Judicial Performance, the agency which is responsible for investigating misconduct complaints directed at judges serving on the Supreme, Superior and Appellate courts. The EAC’s authority and duties are set forth in the California Code of Regulations, title 8, sections 9722 through 9723.

The EAC meets at regular intervals to review complaints of judicial misconduct and to make recommendations to the Chief Judge and the Administrative Director of the DWC if a complaint warrants a formal investigation by the Administrative Director’s staff. Pursuant to California Code of Regulations, title 8, section 9722, the Ethics Advisory Committee is composed of nine members, each appointed by the Division of Workers’ Compensation’s Administrative Director for a term of four years. The EAC’s composition reflects the constituencies within the California workers’ compensation community, and is composed of a member of the public representing organized labor; A member of the public representing insurers; A member of the public representing self-insured employers; An attorney who formerly practiced before the Workers’ Compensation Appeals Board and who usually represented insurers or employers; An attorney who formerly practiced before the Workers’ Compensation Appeals Board and who usually represented applicants (injured workers); A presiding judge; A judge or retired judge, and, two members of the public outside the workers’ compensation community.

The EAC meets four times each year at the DWC Headquarters located at 1515 Clay Street, in Oakland, California. Although EAC meetings are open to the public, the Committee meets in executive session when it engages in the review and discussion of actual complaints, and that portion of the proceedings is closed to the public.

In 2012, the DWC had authority over 168 active judges. The EAC received 19 new complaints in the calendar year of 2012, 6 complaints resulted in investigations. The complaints set forth a wide variety of grievances. Three complaints were filed by employees represented by attorneys. Nine by non represented attorneys. One by a defense attorney. And one each by a hearing rep, lien claimant, and an attorney representing a lien claimant.

The Ethics Advisory Committee identified no judicial misconduct in 15 complaints, and did not recommended further action by the Chief Judge or the Administrative Director on any complaints. Three complaints presently remain pending and under investigation from complaints filed in 2012.

Wider adoption of electronic health recrords (EHR) is critical to the broader health care improvement efforts, including efficiencies within the workers’ compensation health system. These efforts – improving care coordination, reducing duplicative tests and procedures, and rewarding hospitals for keeping patients healthier – are all made possible by widespread use of EHRs. Health IT systems give doctors, hospitals, and other providers the ability to better coordinate care and reduce errors and readmissions that can cost more money and leave patients less healthy. In turn, efforts to improve care coordination and efficiency create further incentive for providers to adopt health IT.

HHS Secretary Kathleen Sebelius announced this week that more than half of all doctors and other eligible providers have received Medicare or Medicaid incentive payments for adopting or meaningfully using electronic health records (EHRs). HHS has met and exceeded its goal for 50 percent of doctor offices and 80 percent of eligible hospitals to have EHRs by the end of 2013.

Since the Obama administration started encouraging providers to adopt EHRs, usage has increased dramatically. According to the Centers for Disease Control and Prevention survey in 2012, the percent of physicians using an advanced EHR system was just 17 percent in 2008. Today, more than 50 percent of eligible professionals (mostly physicians) have demonstrated meaningful use and received an incentive payment. For hospitals, just nine percent had adopted EHRs in 2008, but today, more than 80 percent have demonstrated meaningful use of EHRs.

“We have reached a tipping point in adoption of electronic health records,” said Secretary Sebelius. “More than half of eligible professionals and 80 percent of eligible hospitals have adopted these systems, which are critical to modernizing our health care system. Health IT helps providers better coordinate care, which can improve patients’ health and save money at the same time.”

The Obama administration has encouraged the adoption of health IT starting with the passage of the Recovery Act in 2009 because it is an integral element of health care quality and efficiency improvements. Doctors, hospitals, and other eligible providers that adopt and meaningfully use certified electronic health records receive incentive payments through the Medicare and Medicaid EHR Incentive Programs. Part of the Recovery Act, these programs began in 2011 and are administered by the Centers for Medicare and Medicaid Services and the Office of the National Coordinator of Health Information Technology.

Congress is again being asked to amend the Medicare Secondary Payment Act, just six months after enacting reform legislation dealing with the issue, which took five years to pass congressional muster. The Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2013 was introduced this month in the House, sponsored by Rep. Dave Reichert, R-Wash., and Mike Thompson, D-Calif. The new legislation seeks to reform the processes and procedures used by Centers for Medicare and Medicaid Services (CMS) in its review of workers’ compensation settlement agreements.

According to the story in Property Casualty 360, strong supporters include members of the American Insurance Association and the Coalition for Medicare Secondary Payer Reform. The bill seeks to resolve the serious delays and confusion in the review of workers’ compensation Medicare set- asides by CMS, says to Melissa Shelk, AIA vice president for federal affairs, and Douglas Holmes, president of Strategic Services on Unemployment and Workers’ Compensation (UWC) and coordinator of the Coalition for Medicare Secondary Payer Reform.

“The CMS workers’ compensation Medicare Set-Aside (WCMSA) review process is broken, and this legislation seeks to fix the costly delays and problems within the system,” Shelk said. “We believe that the CMS review process needs clear and consistent standards, timely resolution of coverage decisions and the ability to enable appeals when necessary.”

Holmes said reform is being sought because the current procedure for review of workers’ compensation settlements provides no effective recourse. He said, “There is no avenue to compel a timely decision or appeal a bad one. The legislation introduced by Representatives Reichert and Thompson corrects this situation and many other costly problems and delays, for the benefit of all parties involved.”

In December, Congress passed legislation sought by the insurance industry and other stakeholders since late 2008 that streamlines enforcement of the Medicare Secondary Payment program. The legislation is H.R. 1063, the SMART Act, or The Strengthening Medicare and Repaying Taxpayers Act. The bill is example of how difficult it is to get special interest legislation through Congress is so difficult. The SMART Act was first introduced in Congress in the fall of 2010, but momentum for passage was not generated until last September, when the House Energy and Committee staff coalesced on a rewritten bill crafted with bipartisan support and passed it in late September.

The reason that bill finally got through Congress is that supporters included plaintiffs and defense attorneys, brokers, insureds, insurers, insurance and trade associations, self-insureds and third-party administrators.