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Texas Trucker Loses 5th Circuit Battle Over Cal/OSHA Jurisdiction

Bulkley & Associates, LLC is a Hopkins County, Texas, company that transports refrigerated goods interstate.

In 2015, a Bulkley truck driver fell off a truck and was injured while delivering goods to a customer in Salinas, California.

Defendant Department of Industrial Relations, Division of Occupational Safety and Health of the State of California, cited Bulkley and assessed penalties for three violations of California health and safety law: (1) failing to timely report an injury to California authorities, (2) failing to develop an injury-prevention program compliant with California law, and (3) failing to require foot protection in accordance with California law.

Bulkley pursued administrative appeals in California, disputing the Department’s authority to require Bulkley to comply with California law. Bulkley lost and has since filed two lawsuits challenging the Department’s authority.

Bulkley I began in 2018, when Bulkley filed a petition for mandamus in Hopkins County court, seeking judicial review of the California administrative appeal that Bulkley lost. The Department removed the petition to federal court, and promptly moved to dismiss for lack of personal jurisdiction. Bulkley argued that the Texas court had personal jurisdiction because Bulkley is a Texas resident and because the California law authorizing judicial review of agency action directs litigants to the county court where they reside.

Bulkley also argued that the Department had minimum contacts with Texas because the citations “penalized Bulkley for its work rules and procedures, which were created and implemented in Texas.” They did not prevail in Bulkley I.

After Bulkley I and before Bulkley II, in August 2019, the Department sent Bulkley a letter to collect the unpaid penalties of $6,180, informing Bulkley that the Department would pursue a judgment in California court if Bulkley failed to pay. On September 9, 2019, the Department sent Bulkley another letter, referencing violations of California law “observed during the inspection completed on 09/04/2015 [at] the place of employment” “maintained by” Bulkley and located in Salinas, California.

Bulkley sought and obtained injunctive relief in Hopkins County court (commencing Bulkley II, the current case), pointing to the September 9, 2019 letter as proof that the Department had possibly inspected Bulkley in Texas and was threatening to do so again.

The Department again removed the action to federal court and again moved to dismiss for lack of personal jurisdiction. The district court again concluded the Department lacked minimum contacts and dismissed Bulkley’s complaint for lack of personal jurisdiction.

The United States Court of Appeals for the Fifth Circuit affirmed the dismissal in the case of Bulkley & Associates, L.L.C., v Department of Industrial Relations, Division of Occupational Safety and Health of the State of California.

The Department did not establish minimum contacts solely by way of sending the September 2019 letter. And the possibility that the Department has inspected or will inspect Bulkley in Texas does not establish minimum contacts. It does not matter if the Department’s letter instructed Bulkley to remedy violations of California law, which Bulkley could only do by changing its policies in Texas.

California Fentanyl Overdose Deaths Jump 2100% in 5 Years

When San Francisco police seized seven kilos of powder-filled baggies containing the deadly opioid fentanyl last week, the city’s police chief warned the bust contained “enough lethal overdoses to wipe out San Francisco’s population four times over.

But, according to a report published in The Guardian, drug addiction experts say the haul may represent just a tiny fraction of the massive volume of the powerful synthetic drug that is flooding California, after being mostly an east coast phenomenon for years.

The evidence is in the rapidly surging death rates. The number of deaths from fentanyl overdoses jumped by more than 2100% in California in five years, state figures show. Overdoses of synthetic opioids (mostly fentanyl) killed nearly 4,000 residents in the state last year, according to the most recent estimate from the US Centers for Disease Control and Prevention.

In San Francisco, drug users are dying at a rate of nearly two a day, many on the streets of the city’s Tenderloin District.

In San Diego, fentanyl is coursing through the homeless population, according to experts and recent media reports. Santa Clara county saw the number of fentanyl deaths more than double last year, KQED reported, with victims on average younger than in previous years.

“Fentanyl has moved west,” said Dr Daniel Ciccarone, a professor specializing in addiction medicine at the University of California, San Francisco. Ciccarone said the lab-made drug was barely seen in western states before 2017. Instead, he said, it used to be distributed by drug trafficking networks supplying the east coast, who often slipped it into heroin supplies without telling users.

In a paper released this month, Ciccarone describes the explosion of accidental overdose deaths occurring west of the Mississippi as part of a “fourth wave” of the opioid crisis.

In California, the drug is being sold under its own name, as powders or tablets. It’s also being mixed with stimulants, like methamphetamines.

Fentanyl is so powerful that a quantity small enough to fit under a fingernail can be deadly within minutes. Dr Aimee Moulin, a professor of emergency medicine at the University of California, Davis medical center in Sacramento, said she was seeing adolescents as young as 13 overdose on counterfeit opioid pills available for home delivery over the internet.

“The potency is so high that a decimal point difference in the concentration can be lethal,” she said.

Fentanyl is an attractive product for drug cartels because it can be cheaply manufactured in foreign clandestine laboratories and substituted for more expensive drugs like the white-powdered heroin commonly sold on the east coast or pressed into counterfeit pills sold as OxyContin or Percocet, according to the 2020 National Drug Threat Assessment from the US Drug Enforcement Administration.

The Sinaloa cartel and Jalisco New Generation cartel from Mexico have been taking over production and distribution from prior sources, which included China, the report said.

Medical Evidence Required to Add Rather Than Use CVC

Carmen Torres sustained an admitted injury from a slip and fall accident in 2011 while working for the Santa Barbara Community College District.

She had dual employment at the time of her injury as a bilingual GED instructor at Santa Barbara Community College, and a teacher’s aide working for the Santa Barbara Unified School District as a bilingual assistant in special education classes. Applicant stopped working at both jobs after her industrial injury.

She testified that she last worked in 2011, and has retired, due to her industrial injury, and in part due to her need to help her daughter who has special needs, though she emphasized that caring for her daughter was not her primary motivation. She testified that she devotes four to five hours per day to her daughter. She now receives a pension.

Her treating physician returned her to work with restrictions, but the restrictions could not be accommodated. She has had no treatment since 2017. No doctor told her she could not return to gainful employment. She sought to return to employment as a translator, but could not type documents due to pain in her shoulders, low back, hands and wrists.

The WCJ awarded applicant 52% permanent disability. The rating added the right and left shoulder disability and combined them with the remaining disability.

The WCJ explained that in finding applicant was not permanently totally disabled, he found persuasive applicant’s testimony concerning the activities she performs for her daughter, indicating her ability to perform activities including driving, meal preparation, cleaning and laundry. He found applicant’s claim for permanent total disability not supported by the evidence. The WCAB agreed in the panel decision of Torres v Santa Barbara Community College District.

On reconsideration, Torres argued that this record justifies a finding that she is permanently totally disabled, without apportionment, based on a vocational rebuttal of the scheduled rating of her impairments. Secondly, she contends that her rating should be based on the addition of her impairments, rather than use of the CVC, because of a lack of overlapping disability in her injured body parts.

The panel affirmed the WCJ’s conclusion that applicant did not establish through vocational evidence that she has rebutted the scheduled rating of her permanent disability. And also concurred with the WCJ’s conclusion that applicant has not established a medical basis for rating her impairments, other than her shoulder disabilities, using the additive method recognized in Athens Administrators v. Workers’ Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den).,rather than using the CVC.

Impairments may be added if substantial medical evidence supports a physician’s opinion that adding them will result in a more accurate rating of the applicant’s level of disability than the rating resulting from the use of the CVC. A physician’s opinion on the most accurate rating method should be followed if he provides a reasonably articulated medical basis for doing so. (De La Cerda v. Martin Selko & Co. (2017) 83 Cal. Comp. Cases 567 (writ den.).)

Applicant has not cited any medical reports that concluded that use of the CVC to combine her other impairments would not accurately reflect applicant’s overall disability. Dr. Gjerdrum testified that only the shoulder disability should be added, and that applicant’s neck and back disability should be combined. A WCJ cannot make the determination to add disability in the absence of a physician’s opinion that adding them will result in a more accurate rating of the applicant’s level of disability.

Experts Petition FDA to “Slow Down” Full Vaccine Approval

MedPageToday reports that a group of clinicians and researchers has petitioned the FDA to delay fully approving any COVID-19 vaccines before clinical trials have been completed, calling the notion of approval to stimulate vaccination rates “backward logic.”

The group, led by Linda Wastila, BSPharm, MSPH, PhD, professor of pharmaceutical health services research at the University of Maryland School of Pharmacy, includes 27 petitioners, including 16 experts outside the U.S., primarily based in Europe.

The message of our petition is ‘slow down and get the science right — there is no legitimate reason to hurry to grant a license to a coronavirus vaccine.’ We believe the existing evidence base — both pre- and post-authorization — is simply not mature enough at this point,” they wrote in a blog post published in The BMJ.

“If the FDA listens to us, they won’t give serious consideration to approving a COVID-19 vaccine until 2022. Our first request is that the FDA require manufacturers to submit data from completed phase III trials — not interim results. Trials by vaccine manufacturers were designed to follow participants for two years, and should be completed before they are evaluated for full approval, even if they are now unblinded and lack placebo groups. These phase III trials are not simply efficacy studies; they also are necessary and important safety studies,” the group wrote.

Full approval is not necessary to address public health, they argued, because the emergency use authorizations that the FDA has already issued for three vaccines are substantial enough to provide adequate vaccine access.

However, full approval may convince more people to get vaccinated, the group tacitly acknowledged. “While approval might lead to increased public confidence in COVID-19 vaccines, as well as provide legal support for employer-instituted vaccine mandates, to approve a medical product for these reasons is outside FDA’s regulatory purview. Approval decisions must be driven by the safety and efficacy data,” they wrote in the blog post.

The group also asked the FDA to hold off approval until the agency:

– – Confirms there is substantial evidence that clinical effectiveness outweighs harms among special populations
– – Requires a “thorough” safety analysis of spike proteins produced in situ after vaccine administration, including studies on spike proteins’ “full biodistribution, pharmacokinetics, and tissue-specific toxicities”
– – Completes vaccine biodistribution studies “from administration site and safety implications of mRNA translation in distant tissues”
– – Comprehensively investigates all severe adverse reactions reported after vaccination
– – Examines the safety of people taking more than two doses
– – Includes gene delivery and therapy experts in its Vaccines and Related Biological Products Advisory Committee
– – Enforces “stringent conflict of interest requirements to ensure individuals involved in data analysis and decision making” related to Biologics License Applications lack such conflicts with the vaccine manufacturers

The group submitted their petition June 1, calling on FDA to provide an answer by June 11 in part “to allow Petitioners the opportunity to seek emergency judicial relief should the instant Petition be denied,” they stated. Group members also plan to lobby Congress, according to an email from the group to MedPage Today.

Approving a COVID-19 vaccine now risks setting a precedent of lowered standards for future vaccine approvals. The ‘FDA approved’ seal must represent a high bar — and premature licensure of a COVID-19 vaccine could seriously damage public confidence in regulatory authorities, particularly if long-term safety issues were to emerge following licensure,” they wrote in the blog post.

Indictment Adds Details to Illegal Comp Referral Prosecutions

Last week, news accounts of the criminal complaint filed by Orange County prosecutors reported that that 45 year old Steven Omid Mehr, an attorney, allegedly used an illegal referral system to send potential clients to California workers’ compensation attorneys, and load them up with fees in the process.

A review of the Grand Jury indictment adds details to the case, as well as the employers and insurance carriers who were victims of $3.8 million in allegedly fraudulent copy service and interpreter bills. Mehr allegedly used the system to direct business to copying and printing services providers he controlled, bilking unsuspecting clients and worker compensation insurance companies.

To support allegations of a violation of Section 3215 of the Labor Code for illegal referral of clients, prosecutors allege Mehr formed Web Shark 360, a marketing firm specializing in advertising for attorneys. He utilized various marketing and advertising platforms to attract persons seeking legal assistance, including purchasing rights to use the name “Jacoby & Meyers” and falsely identifying it as a law firm the public could hire for legal representation.

His intake staff received “leads” in the form of telephone calls, online inquiry submissions, and live-chat notifications through toll-free numbers appearing on “Jacoby & Meyers” advertisements and websites, and leads from other web-based attorney-advertising platforms. His intake staff was allegedly directed to communicate with these prospective clients, or “leads,” and convert them into clients who would be retained for attorneys paying Mehr for client referrals.

Attorneys Gil Alvandi, Tracy Briles, Emily Mehr, Mahdis Kaeni, Anton Diffenderfer and Ziad Rawa (Rawashdeh), amongst others, allegedly agreed to pay defendant Mehr a monthly fee for a predetermined number of client referrals, or a percentage of the attorney’s fees collected from the referred case.

To support a conviction for violation of section 550(b )(3) of the Penal Code (Insurance Fraud), prosecutors allege that Mehr formed and co-owned two copy service companies, Expedited Attorney Services and Capital Attorney Services, with his co-defendant George Hobson III. who is not an attorney. He also formed and co-owned a translation/interpretation company, National Translation Services, with Hobson.

Employees of the copy service companies were sent to law offices of a select group of workers’ compensation applicant attorneys, where they were given access to the law firm’s client files in order to identify entities or “locations” that the copy service could serve with records subpoenas. The copy service companies then billed workers’ compensation insurance companies for each individual location they served with a records subpoena.

The same select group of workers’ compensation applicant attorneys used National Translation Service for translation/interpretation services for their clients. National Translation Service billed workers’ compensation insurance companies for all translation services rendered for these law firms.

The victims where allegedly ACM, AIG, Amtrust, Berkshire Hathaway, City of Los Angeles, County of Los Angeles, County of Riverside, Employers Insurance, Farmers Insurance, Gallagher Bassett, Hartford Insurance, ICW Group, Liberty Mutual, Markel Corporation, Matrix Absence Mgmt., Midwest Insurance, SCIF, Sedgwick, Travelers Insurance, York Risk Services Group, Zenith Insurance, Zurich Insurance.

The indictment names the 44 witnesses called by the Grand Jury to investigate these allegations, and claims further that the victims suffered $3.8 million in losses.

Spine Device Makers Resolve Sunshine Act Kickback Cases

The U.S. Department of Justice signaled its continued focus on enforcement of the federal Physician Payment Sunshine Act, when it announced the second major settlement involving Sunshine Act allegations in just over six months. Under the settlement, which also resolves claims asserted in a qui tam lawsuit,

Medicrea International, a French medical device manufacturer, and its American affiliate, Medicrea USA Inc.agreed to pay $1 million to resolve allegations that it failed to fully report certain payments and transfers of value under the Sunshine Act as well as $1 million to resolve alleged violations of the federal Anti-Kickback Statute and federal False Claims Act.

The California Attorney General also announced that California will receive nearly $93,000 from this settlement.

The settlement agreement arise from allegations that during an ex-U.S. medical professional society meeting in 2013 in Lyon, France, Medicrea provided meals, alcoholic beverages, entertainment, and coverage of travel expenses to U.S.-based physicians to induce these physicians to purchase or order Medicrea’s spinal devices, resulting in the submission of false claims to the government, and failed to fully report such payments and transfers of value to the Centers for Medicare & Medicaid Services as required under the Sunshine Act.

The Sunshine Act requires manufacturers of certain products that are reimbursed by Medicare, Medicaid, or the Children’s Health Insurance Program to track and annually report all payments and other transfers of value made to certain healthcare providers and U.S. teaching hospitals, collectively referred to as “covered recipients,” unless an exception applies. See 42 U.S.C. § 1320a-7h; see also 42 C.F.R. § 403.904.

In 2020, the U.S. DOJ announced a settlement with medical device manufacturer Medtronic USA Inc.for $9.2 million to resolve allegations that: the company paid kickbacks to induce a neurosurgeon to use its products; and failed to accurately report payments to this neurosurgeon in violation of the Physician Payments Sunshine Act.

This settlement arises from an investigation into certain financial arrangements between Medtronic and South Dakota-based neurosurgeon Wilson Asfora. The government alleged that Medtronic, at Dr. Asfora’s request and contrary to the company’s compliance policies, agreed to pay for events at Carnaval Brazilian Grill, a local restaurant owned by Dr. Asfora and his wife. Allegations in the settlement agreement claim that  Medtronic held over 130 events at Carnaval for which it paid over $87,000 to Dr. Asfora’s restaurant.

Medtronic’s sales personnel allegedly stated in internal expense reports that the events were held to discuss educational content or business information. However, the government alleged that these events were social events that included the provision of lavish meals and alcohol to social acquaintances, business partners, favored colleagues, and referral sources selected by Dr. Asfora, with little or no discussion of Medtronic products.

Immediately after the 2020 settlement, Medtronic announced that it has completed its friendly tender offer for Medicrea International. As a result of completion of the tender offer, Medtronic currently owns in excess of 90% of Medicrea’s share capital and voting rights and was expected to request the implementation of a squeeze-out procedure under French law, which will result in Medicrea becoming a wholly-owned subsidiary of Medtronic.

Less than a year later, its acquisition target was accused of a similar Sunshine Act violation.

Until these recent settlements, there had been no public enforcement actions involving Sunshine Act violations. However, following Congress’s expansion of the Sunshine Act in October 2018 to include five new categories of “covered recipients” subject to reporting requirements, the Senate Finance Committee requested that CMS review the Open Payments database for potential Sunshine Act violations.

New WCAB Tool – “Commissioner’s Settlement Conference”

A WCJ awarded applicant, Jeffrey Molina, temporary and permanent disability compensation and further medical treatment against Hartford Fire Insurance Co., which had previously stipulated to have provided workers’ compensation insurance coverage to the employer Fred Loya Insurance, at the time of his injuries.

At some point, Hartford concluded that the correct carrier for this injury was Zurich American Insurance Company. Hartford petitioned to have Zurich joined as a party in order to have Zurich assume responsibility for the payment of the claim.

The WCJ declined to join Zurich, and to relieve Hartford of its stipulation to insurance coverage.

Hartford contended in its petition for reconsideration that the WCJ erred in not relieving Hartford of its stipulation.

The WCJ issued a report in which she recommended that reconsideration be denied.

Subsequently, at the request of the WCAB panel, applicant and Hartford participated in a “commissioners’ settlement conference.” Zurich also participated in the commissioners’ settlement conference even though it had never been joined as a party defendant in these cases.

The outcome of the commissioners’ settlement conference was that applicant, Hartford and Zurich agreed to resolve applicant’s claims in these cases and Hartford’s potential claim for contribution against Zurich by compromise and release.

The Compromise and Release provided that Hartford was to pay applicant $120,000, less permanent disability indemnity previously paid of $47,187.79, and less an attorneys’ fee of $18,000, leaving $54,812.21 payable to applicant in a lump sum.

Hartford agreed to adjust or litigate liens of record with jurisdiction reserved. In addition, Hartford and Zurich agreed that the latter will pay Hartford $30,000 in full satisfaction of any claim for reimbursement or contribution Hartford may have against Zurich.

The WCAB panel thus granted reconsideration, and rescinded the Findings and Award in the panel decision of Molina v Hartford Fire Insurance Co. (ADJ7922408 ADJ8924319 ADJ8924320) and approved the Compromise and Release.

The three member WCAB panel concluded with the comment “we commend the parties for engaging in good faith negotiations and successfully resolving this matter without the need for further litigation.”

Thus, the commissioners settlement conference may become an evolving tool in workers’ compensation litigation to resolve disputes.

Ninth Circuit to Decide Fate of DEA 49 Year Old Cannabis Ban

In a case that could make the federal government reconsider how it classifies marijuana, a lawyer urged a Ninth Circuit panel Thursday to make the U.S. Drug Enforcement Administration reassess its 49-year-old position that cannabis has no accepted medical use.  The Ninth Circuit includes California, thus this is a case of significance for the issue in workers’ compensation claims for our state.

“It’s a relic of a bygone era,” attorney Shane Pennington told a three-judge Ninth Circuit panel.

According to the report in Courthouse News, Pennington represents Dr. Suzanne Sisley, an Arizona-based medical marijuana researcher, and three veterans who claim they suffer ongoing harm from the federal government’s refusal to reclassify cannabis as a drug with medicinal benefits. Their Ninth Circuit petition highlights research Sisley has conducted using marijuana to treat veterans who suffer from post-traumatic stress disorder.

Despite the fact that medical marijuana is legal in 36 states, the DEA has classified cannabis as a Schedule I drug – the most restrictive category – since 1972. Congress empowered the DEA to decide how drugs should be classified in the Controlled Substances Act of 1970. That was around the same time former President Richard Nixon declared a “war on drugs.”

The petitioners argue a five-factor test the DEA established in 1992 to determine if a drug has any medical benefit is arbitrary, leads to absurd results and contradicts the will of Congress.

But most of the Ninth Circuit hearing focused not on the wisdom of the DEA’s decision or its criteria for categorizing drugs. Rather, it focused on whether the petitioners have standing to bring their challenge in federal court.

That’s because Sisley and the veterans are challenging the denial of a petition they never filed. The one-page, handwritten petition asking the DEA to reclassify marijuana was filed by Stephen Zyszkiewicz and Jeramy Bowers in January 2020. The DEA denied the petition four months later. Zyszkiewicz and Bowers have two separate lawsuits pending over the denial in the District of Columbia.

This is a really odd case,” Circuit Judge Willaim Fletcher, a Bill Clinton appointee, told lawyers challenging the DEA’s decision. “You appealed the denial of somebody else’s petition. I’ve never seen a case like this.”

But it’s not unprecedented, according to Matthew Zorn, another lawyer representing Sisley and the veterans.

To support his position, Zorn cited the seminal 2007 Supreme Court case, Massachusetts v. EPA, which forced the federal agency to start regulating greenhouse gas emissions to combat climate change. In that case, Massachusetts was challenging the denial of a petition filed by someone else.

“None of the judges at the D.C. Circuit or on the Supreme Court thought anything about it, that Massachusetts was filing a petition for review on another party’s petition,” Zorn said.

Drawing a distinction, Justice Department lawyer Daniel Aguilar told the panel that Massachusetts had standing in that case only because the Supreme Court found it deserved “special solicitude” as a “sovereign state.”

Responding to a question posed by Circuit Judge Daniel Collins, a Donald Trump appointee, Aguilar acknowledged the Massachusetts v. EPA court never squarely addressed the question of whether a party can challenge the denial of a petition it did not file. But he insisted that no case law exists to support that notion.

Fletcher indicated that he agrees with that position.

U.S. Circuit Judge Paul Watford, a Barack Obama appointee, suggested that allowing people to challenge decisions on petitions they didn’t file could lead to a flood of litigation. Potentially tens of millions of people allegedly harmed by the DEA’s decision could file their own challenges to the petition denial in separate circuit courts across the country, Watford said.

After 33 minutes of debate, the panel took the arguments under submission.

Cal/OSHA Abruptly Withdraws COVID Safety Standards Phase Out

On June 3rd, the Occupational Safety and Health Standards Board readopted Cal/OSHA’s revised COVID-19 prevention emergency temporary standards.

The changes adopted by the Board on June 3rd phased out physical distancing and make other adjustments to better align with the state’s June 15 goal to retire the Blueprint. Without these changes, the original standards, would be in place until at least October 2.

In a late night meeting on June 9, the Occupational Safety and Health Standards Board voted to withdraw the revisions to Cal/OSHA’s COVID-19 prevention emergency temporary standards that they had voted to approve on June 3, and that were sent to the Office of Administrative Law for review.

The vote was held during a special meeting on June 9 to consider the latest guidance regarding masking from the Centers for Disease Control and California Department of Public Health.

The meeting, attended by members of the public including workers, industry leaders, employers and other stakeholders shared their views on the matter in more than two and a half hours of public comment.

Those revised emergency standards were expected to go into effect no later than June 15 pending approval by the OAL within 10 calendar days after the Standards Board rulemaking package submission.

The Standards Board voted unanimously to withdraw the revisions approved on June 3 that are currently at OAL for review but have not yet become effective.

Cal/OSHA will review the new mask guidance and bring any recommended revisions to the board.

The Board could consider new revisions at a future meeting, perhaps as early as the regular meeting on June 17. In the meantime, the protections adopted in November of 2020 will remain in effect.

Consumer Interest in Telemedicine Increased From 11% to 76%

The Summer 2021 edition of RxInformer covers diverse topics such as the future of telemedicine and practical tips to make it effective in workers’ compensation.

Telemedicine use has increased in response to the COVID-19 pandemic and is gaining acceptance in workers’ comp. While some obstacles remain, telemedicine has the potential to expand care delivery options and speed recovery times.

According to a recent study by McKinsey, consumer interest in telemedicine rose from 11% to 76% during the pandemic, 57% of healthcare providers said they viewed telemedicine more favorably, and 64% of providers are comfortable using telemedicine. In the course of just a few months, telemedicine physician visits rose 50 – 175x, depending on geography and type of practice.

In workers’ comp, telemedicine also gained wider acceptance during the pandemic as many states relaxed restrictions regarding its use for injured worker patients. The types of changes made by the states (and CMS, which guides rules for some states) vary and include: allowing additional services to be delivered via tele technologies; relaxing provider licensing requirements; amending reimbursement rules (often reimbursing at the higher office visit rates to encourage telemedicine use); and allowing different modes of technology, such as audio-only calls.

Many of the legal and regulatory changes regarding telemedicine are temporary, and it remains to be seen which will become permanent and where. Workers’ comp stakeholders had hopes of cost reduction through telemedicine, both indirectly by speeding recovery times with better access to care, and directly through lower provider fees for virtual visits. To encourage the use of telemedicine during the pandemic, many states have allowed in-office reimbursement rates for virtual visits, which eliminates the direct savings incentive and makes the reimbursement question an important one going forward.

Exactly which medical services can be effectively delivered through telemedicine is also yet to be determined. Currently, fewer than 100 medical services are approved for telemedicine by CMS, which is a small fraction of the 8,000+ services covered by Medicare and Medicaid. The number of medical services we commonly see in workers’ comp are much fewer and, while some services will always require that the provider and patient be physically together, a significant portion of injured worker care could potentially be delivered virtually.

Telemedicine is not appropriate for all medical services. Serious injuries and illness demand in-person attention, and most diagnostic tests and all surgeries require physical contact with the patient. In addition to these obvious exceptions, some patients may feel that they are not getting proper care with a telemedicine visit and prefer to see their healthcare provider in person. There are also important privacy concerns and fear of fraud in both general healthcare and workers’ comp.

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