Category: Daily News

Sandab Duon filed three claims for injury while employed as a machine operator by California Dairies. Robert Weber, M.D., acted as the internal medicine panel QME and evaluated applicant on August 3, 2015. Robindra Paul, M.D., was the psychiatric panel QME.

On April 19, 2016, the Hartford representative sent a letter to the internal QME Dr. Weber enclosing a copy of Dr. Paul’s March 16, 2016 report in response to Dr. Weber’s request to see the psychiatric report during his deposition. The letter lists applicant’s attorney, Mr. Bryan Leiser, as one of the copied parties, but only states his name, not his address. No proof of service of the letter is in evidence.

Dr. Weber issued a report dated August 31, 2016 reflecting his receipt and review of Dr. Paul’s report. However, Dr. Weber’s opinion remained “as expressed” in his previous report.

The matter ultimately proceeded to trial. One of the issues was whether Dr. Weber as the internal medicine QME has been tainted based upon the provision of Dr. Paul’s reporting to him during the period of time that this issue was being disputed, and if so, is it sufficient to entitle the applicant to a new internal medicine panel.

The WCJ found that The Hartford, provided medical information to the internal medicine panel qualified medical evaluator (QME) without first serving applicant and engaged in ex parte communication with the QME in violation of Labor Code sections 4062.3(b) and 4062.3(e). (Lab. Code, § 4062.3(b) & (e).) and ordered the parties to obtain a new QME panel in internal medicine or agree to an internal medicine agreed medical evaluator (AME).

A co-defendant, Insurance Company of the West petitioned for reconsideration.The WCAB issued an en banc decision in the case of Sandab Suon v California Dairies; Insurance Company of The West; The Hartford; Starr Indemnity and Liability Insurance Company, interpreting Labor Code section 4062.3.

Section 4062.3(b) requires that “information” proposed to be provided to the QME “shall be served on the opposing party 20 days before the information is provided to the evaluator.” Section 4062.3(e) separately requires that “communications with a [QME] before a medical evaluation” must be served on the opposing party “20 days in advance of the evaluation.”

However, section 4062.3(e) further provides that “[a]ny subsequent communication with the medical evaluator “shall be served on the opposing party when sent to the medical evaluator.” The preliminary question is whether the documents or materials sent to the QME are “information” or “communication” as those terms are used in the Labor Code.

Whether a party properly served a written communication with the QME to the opposing party is a question of fact the determination of which must be supported by substantial evidence. In this matter, the evidence in the record is unclear whether Mr. Paul’s letter to the QME Dr. Weber was properly served and received by Mr. Leiser, and the matter will be returned to the WCJ to further address that issue pursuant to the discussion herein. If a communication was not ex parte, the trier of fact must decide if the documents or materials sent to the QME nonetheless constitute “information” subject to section 4062.3(b).

As a general rule, the WCAB determined that the following rules apply to a QME evaluation.

(1) Disputes over what information to provide to the QME are to be presented to the WCAB if the parties cannot informally resolve the dispute. The “meet and confer” provisions in the Civil Discovery Act are useful
(2) Although section 4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, the opposing party must object to the provision of medical records to the QME within a reasonable time in order to preserve the objection.
(3) If the aggrieved party elects to terminate the evaluation and seek a new evaluation due to an ex parte communication, the aggrieved party must do so within a reasonable time following discovery of the prohibited communication.
(4) The trier of fact has wide discretion to determine the appropriate remedy for a violation of section 4062.3(b).
(5) Removal is the appropriate procedural avenue to challenge a decision regarding disputes over what information to provide to the QME and ex parte communication with the QME

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Siemens Healthineers, the medical arm of the German engineering and technology conglomerate, has teamed up with Israeli start-up Healthy.io to allow patients to test their urine at home by using a smartphone camera that scans a dipstick and sends the results to their doctor.

Healthy.io’s founder and CEO Yonatan Adiri was selected as one of the 50 most influential people in healthcare by TIME magazine.

The alliance is the latest partnership between medtech firms and technology companies aimed at helping patients monitor their own health, as well as lowering the costs of managing chronic diseases.

Urine testing is the world’s second-most frequently conducted diagnostic test. Regular testing is needed to monitor kidney function in patients with chronic kidney disease, as well as to detect potential signs of diabetes.

Last summer. the Food and Drug Administration granted Class 2 approval to Healthy.io’s Dip.io, a urinalysis kit that includes an mHealth app and dipstick. Through a smartphone camera, the app’s AI software can detect 10 different healthcare conditions, including certain infections, pregnancy issues and chronic conditions, and instantly stores that data in the cloud for care providers.

Class II approval is granted to devices that have direct health implications and require a medium level of supervision. This is one of the first devices reportedly approved by the FDA that is designed for use with optical equipment designed by a third party.

Under the new global partnership Healthy.io will use urinalysis tests from Siemens Healthineers in dipkits that are sent to patients at home. Patients urinate on the dipstick and scan it using their smartphone camera, which uses computer vision and machine learning to ensure the results can be read. The results are then sent via an app to the patient’s medical record for a doctor to assess.

“This alliance expands our capabilities to improve patient experience by conducting testing in their home,” said Christoph Pedain from Siemens Healthineers’ Point of Care Diagnostics business.

Yonatan Adiri, founder and chief executive officer of Healthy.io said the technology was like a “medical selfie” that would improve patient outcomes through more frequent testing.

The mobile health platform is currently being tested at Pennsylvania’s Geisinger health system in a partnership with the National Kidney Foundation.

A number of technology companies including Apple, Samsung Electronics and Google are working on health-related applications for wearable devices and smartphones. Last month, Apple said its new watch can take an electrocardiogram and detect heart problems.

Orthopaedics company Zimmer Biomet is also testing a new app with Apple which would allow patients due to have hip or knee replacements to funnel basic health data from their Apple watches to their surgeons.

Respondents Low Desert Empire Pizza, Inc., Hi Desert Empire Pizza, Inc., Ten Cap, Inc., and Capten, Inc. sued several related insurance entities – Applied Underwriters, Inc. (Applied), Applied Underwriters Captive Risk Assurance Company, Inc. (AUCRA, and together with Applied, appellants) and California Insurance Company (CIC) (together with appellants, defendants).

Desert Pizza challenged the legality of defendants’ EquityComp workers’ compensation insurance program, which consists of an insurance policy and two related side agreements.

Applied and AUCRA moved to compel arbitration based on arbitration provisions in the side agreements, and Desert Pizza countered that the provisions were unenforceable because defendants failed to file them with California’s Insurance Commissioner for approval, as required in Insurance Code section 11658 (Section 11658).

The trial court agreed and denied the motions to compel arbitration. The Court of Appeal affirmed the denial in the unpublished case of Low Desert Empire Pizza, Inc. v. Applied Underwriters, Inc.

This case involves the intersection of California’s workers’ compensation insurance laws and the Federal Arbitration Act (FAA).

This is one of several actions in this state and across the country challenging the legality of defendants’ EquityComp program based on their failure to seek and obtain regulatory approval of side agreements to the insurance policy. (E.g., Citizens of Humanity, LLC v. Applied Underwriters, Inc. (2017) 17 Cal.App.5th 806 (Citizens of Humanity); Minnieland Private Day Sch., Inc. v. Applied Underwriters Captive Risk Assur. Co. (4th Cir. 2017) 867 F.3d 449; Citizens of Humanity, LLC v. Applied Underwriters Captive Risk Assur. Co. (2018) 299 Neb. 545.)

California’s Insurance Commissioner recently issued an administrative decision concluding appellants’ failure to file a virtually identical EquityComp side agreement under Section 11658 rendered the arbitration provisions in that agreement void and unenforceable. (Matter of Shasta Linen Supply, Inc., Decision & Order, dated June 20, 2016, file No. AHB-WCA-14-31, at p. 43 (Shasta Linen).)

Even more recently, the Fourth Appellate District, Division One, reached the same conclusion. (Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018) 22 Cal.App.5th 1096, 1118 (Nielsen), review den. Aug. 15, 2018.)

Thus, in this case, the Court of Appeal concluded that defendants’ violation of Section 11658 renders their arbitration provisions unenforceable, and affirmed the order denying the motions to compel arbitration.

Michael E. Barri, Tristar Medical Group, and Coalition for Sensible Workers’ Compensation Reform petitioned the court of appeals pursuant to Labor Code section 5955, seek orders directing the Workers’ Compensation Appeals Board to perform its duties and adjudicate Tristar’s lien claims and not enforce provisions contained in newly enacted anti-fraud legislation. (§§ 4615 & 139.21.) claiming certain provisions were unconstitutional.

The new anti-fraud scheme cast a very broad net to halt all proceedings relating to any workers’ compensation liens filed by criminally charged medical providers, as well as any entities “controlled” by the charged provider. The Legislature created this new scheme because existing laws permitted charged providers to collect on liens while defending their criminal cases, allowing continued funding of fraudulent practices.

Pursuant to these two new statutes, the Government gained authority to automatically stay liens filed by charged providers and noncharged entities, without considering if the liens were actually tainted by the alleged illegal misconduct. (§ 4615.) As a result, untainted liens may be stayed (and go unpaid) for a lengthy stretch of time because, in addition to the period required for completion of the criminal case, the statute provides for two post-conviction evidentiary hearings. In the first hearing, the administrative director decides whether to suspend the convicted provider from further participation in the workers’ compensation system. (§ 139.21, subd. (b).)

Following this hearing, the “special lien proceeding” attorney identifies and gathers liens to be adjudicated together by a workers compensation judge (WCJ) in a consolidated “special lien proceeding.” (§ 139.21, subd. (e)(2).) In this second hearing, the lienholder has the evidentiary burden to rebut the statutorily mandated presumption the consolidated liens are all tainted by the misconduct and should not be paid. (§ 139.21, subd. (g).)

In their petition, Barri, Tristar, and CSWCR maintain these statutory provisions go too far and are forcing many legitimate lien providers to stop treating injured workers because the process has become too onerous, expensive, and financially risky. They maintain the creation of a “significantly delayed post deprivation hearing,” the over-inclusive application to untainted liens, and the Government’s failure to provide adequate notice to noncharged entities, has effectively dismantled the safety net in place for injured workers. They suggest the true legislative purpose of the statutes goes beyond fraud prevention and serves the district attorney’s desire to financially cripple criminally charged lien claimants, hampering their ability to adequately defend themselves at trial.

The court of appeal took judicial notice of a number of related documents including the proceedings in federal court by other lien claimants -Vanguard Medical Management Billing, Inc. v. Baker, No. EDCV 17 CV 965 GW(DTBx). It found no merit to any of their claims and denied them the requested relief in the published case of Barri v WCAB.

The WCIRB has released The World of Cumulative Trauma Claims report which focuses on workers’ compensation claims for workplace injuries that result from repetitive mentally or physically traumatic activities extending over a period of time.

CT claims have always been a part of the California workers’ compensation system. Recently, although overall claim frequency and average indemnity and medical costs have been flat to declining, the proportion of claims involving CT has increased sharply. This report explores the world of CT claims including how they differ from specific injury claims and the key drivers of the recent CT claim increases.

CT claims have continued to grow at a significant rate through the economic recovery. CT claims are also much more likely to be reported late, so early estimates of CT claim proportions typically understate the true proportions for an accident year.

Like many cost components, CT claim rates differ significantly across the regions of California. While the proportion of CT claims has typically been higher in the Los Angeles Basin, these rates have diverged significantly over the last several years and are also showing a similar pattern in San Diego.

All of the recent growth in CT claims has been in the Los Angeles and San Diego regions. CT claim rates in other regions of California have declined and are lower than the 1998 levels.

Although the WCIRB does not use the phrase “epidemic” some might say this adjective accurately describes the phenomena in Southern California. According to Merriam-Webster, an epidemic is something that is “excessively prevalent”, or “affecting or tending to affect a disproportionately large number of individuals within a population, community, or region at the same time.”

Beginning in 2008, Construction CT claims increased in the Los Angeles Basin and has accelerated in recent years to be 4 times the 2007 lows.

Los Angeles Basin CT rates in Manufacturing diverted from the rest of the state starting in 1999 and accelerated rapidly starting in 2012. The Los Angeles Basin’s share of all Manufacturing claims has been consistent over time, suggesting that some shifting from specific claims to CT claims may be occurring. The recent CT rates of over 20% in the Los Angeles Basin are among the highest of any industry and the growth in this industry is one of the most significant drivers of recent CT claim growth.

The proportion of CT claims has increased in the Los Angeles Basin Trade industry in recent years though at a somewhat less significant rate than in other industries. The percentage of all Trade industry indemnity claims from the Los Angeles Basin has also increased which is partially attributable to the increases in CT claims.

The vast majority of indemnity claims in the Information industry are from the Los Angeles Basin. Unlike other industries, CT rates in the Information sector across California regions have cut in half from the high in 2004.

The Finance & Insurance industry typically has higher CT claim proportions than any other industry. CT claims decreased to historical lows in the Los Angeles Basin during the 2007 – 2008 financial crisis and rebounded since 2010 to more typical levels for this industry.

CT claims have increased significantly in the Los Angeles Basin Real Estate industry and in 2016 are 4 times the 2008 level. CT claims in Real Estate in other regions of California have also increased, but by a less significant magnitude.

The proportion of CT claims in the Administrative industry is increasing across all regions of California though at a faster pace in the Los Angeles Basin.

The ratio of Arts & Entertainment CT claims in the Los Angeles Basin reached a historical high of 15% in 2015, but shows some indications of decline in 2016 . The proportion of all Arts & Entertainment industry claims from the Los Angeles Basin has increased almost 10% in the last 3 years, driven in part by the CT claim growth.

Beginning in 2008 , the ratio of CT claims in the Los Angeles Basin Hospitality industry increased significantly, more than doubling through 2016. Growth in Los Angeles Basin CT claims from this large industry is one of the most significant drivers of the overall recent growth.

The full report available on the WCIRB website continues to report similar data supporting the conclusion that there is indeed a CT epidemic in the Los Angeles Basin.