Category: Daily News

Kyle Pike was employed by the County of San Diego as a Deputy Sheriff Detention.  On July 31, 2010 he injured his right shoulder and received a combination of Labor Code section 4850 salary continuation benefits and permanent disability benefits between October 27, 2010 and November 15, 2011 and April 30, 2015 through June 19, 2015.

Pike received a Stipulated Award of 12% permanent disability, and filed a timely Petition to Reopen on May 26, 2015 as he claimed an entitlement to Labor Code section 4850 benefits for the period September 15, 12 2015 through March 28, 2016, and temporary total disability benefits from March 29, 2016 through August 18,2016 which was beyond the five year time limit from the date of his injury.

The issue to be determined was whether applicant could receive additional benefits for periods of temporary disability that extended more than five years from his July 31, 2010 date of injury.

The WCJ concluded that when acting upon a timely petition to reopen, the Appeals Board may award temporary disability benefits more than five years from the date of injury, provided that applicant is limited to an aggregate of 104 weeks of benefits. A split panel decision denied reconsideration. However the court of appeal reversed in the published case of County of San Diego v WCAB, and Kyle Pike.

The court of appeal concluded that the plain language of the statute indicates that the T.D. benefit is limited to five years from the date of injury.

Section 4656, subdivision (c)(2) provides, “Aggregate disability payments for a single injury occurring on or after January 1, 2008,[ ] causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury..” (Italics added.)

“The legislative history of section 4656, subdivision (c)(2) is entirely consistent with the statutory text in supporting the conclusion that the Legislature intended to limit temporary disability benefits to five years from the date of a worker’s injury for injuries occurring on or after January 1, 2008.”

“None of the arguments presented by Pike or the CAAA in support of Pike’s claim for benefits is persuasive.”

“Accordingly, we annul a Board order affirming a workers’ compensation administrative law judge’s order that awarded temporary disability benefits for periods of disability occurring more than five years after Pike’s injury.”

The City of Fresno entered into a written contract with the 21st District Agricultural Association, Big Fresno Fair whereby the City agreed to provide onsite police protection and law enforcement services to the Big Fresno Fair that would be held in October of 2011, 2012 and 2013. The District agreed to pay the City approximately $700,000 over the three-year term.

The contract contained a broad indemnification provision requiring the District to indemnify the City from all claims, expenses or liability occasioned by the City’s performance of the contract.

However, the contract also required the City to maintain certain insurance coverages “protecting the legal liability” of the District, including workers’ compensation coverage. The City’s method of furnishing such insurance coverage during the term of the contract was self-insurance.

In October of 2012, while providing law enforcement services at the Big Fresno Fair pursuant to the contract, two of the City’s police officers were injured when attempting to restrain a belligerent patron. The injuries resulted in the City paying out workers’ compensation benefits for the two police officers.

Later, the City sought to recover these amounts from the District under the contract’s indemnification provision. When the District refused to indemnify the City, the present action for breach of contract was commenced by the City against the District.

The parties filed cross motions for summary judgment in the trial court, with the City and the District each arguing alternative interpretations of the contract. The trial court agreed with the District that the specific insurance requirement placed the risk of loss for workers’ compensation claims for police services performed under the contract squarely on the City. The court of appeal affirmed the summary judgment against the City in the unpublished case of City of Fresno v. 21st District Agricultural Assn.

Where possible, courts are to interpret contractual language in a manner that gives force and effect to every provision, and not in a way that would render a provision nugatory, inoperative or meaningless.

It appears that the most reasonable way to harmonize the two provisions is to recognize, as the trial court did, that the insurance requirements placed the risk of loss on the City for claims covered by the agreed-upon insurance coverage (such as payment of workers’ compensation benefits), while the indemnification provision required the District to indemnify the City for all other (e.g., uninsured or uncovered) losses that might arise out of the provision of services under the contract, excepting those relating to the City’s own negligence or willful misconduct.

This interpretation is a reasonable reconciliation of the two contrasting provisions in a manner that gives meaningful effect to both, while avoiding any absurd or unreasonable results.

For years, it was hard to miss the billboards and radio jingles for a weight-loss surgery center that promised, “Let your new life begin, call 1-800-GET-THIN.”

But on Wednesday, federal prosecutors charged that the Lap-Band surgery operation was at the center of a massive fraud scheme that forced patients to undergo unnecessary tests, falsified medical tests to justify surgeries and cheated insurers and patients out of $250 million.

Julian Omidi, 49, of West Hollywood, and Mirali Zarrabi, 55, of Beverly Hills, were arrested pursuant to a federal indictment that alleges a host of criminal charges stemming from GET THIN’s Lap-Band (or bariatric) surgery and sleep study programs between May 2010 and March 2016.

Two corporations controlled, in part, by Omidi – Surgery Center Management, LLC (SCM), and Independent Medical Services, Inc. (IMS) – are also named in the 37-count superseding indictment that was unsealed this week.

The indictment contains charges of mail fraud, wire fraud, false statements, money laundering and aggravated identity theft.

Omidi, a physician whose license was revoked in 2009, controlled, in part, the GET THIN network of entities, including SCM and IMS, that focused on the promotion and performance of elective, Lap-Band weight-loss surgeries. Omidi established procedures requiring prospective Lap-Band patients – even those covered by insurance plans he knew would never cover Lap-Band surgery – to have at least one sleep study, and employees were incentivized with commissions to make sure the studies occurred, according to the indictment. The purpose of the sleep studies was to find a second reason – a “co-morbidity,” such as sleep apnea – that GET THIN would use to convince the patient’s insurance company to pre-approve the Lap-Band procedure.

After patients underwent sleep studies – often with little indication that any doctor had ever determined the study was medically necessary – GET THIN employees, acting at Omidi’s direction, allegedly often falsified the results to reflect that the patient had moderate or severe sleep apnea, and that they suffered from severe daytime sleepiness. Omidi then caused those falsified sleep study reports to be used in support of GET THIN’s pre-authorization requests for Lap-Band surgery.

Relying on the false sleep studies – as well as other false information, including patients’ heights and weights – insurance companies authorized payment for some of the proposed Lap-Band surgeries. The indictment alleges that GET THIN received at least $38 million for the Lap-Band procedures.

Even if the insurance company did not authorize the surgery, GET THIN still was able to submit bills for approximately $15,000 for each sleep study, receiving millions of dollars in payments for these claims, according to the indictment. The insurance payments were deposited into bank accounts associated with the GET THIN entities.

The victim health care benefit programs include TriCare, Anthem Blue Cross, UnitedHealthcare, Aetna, Cigna and others.

In 2014, the government seized more than $110 million in funds and securities from accounts held by individuals and entities involved in the criminal scheme described in the indictment, including Omidi. The government is seeking forfeiture of some or all of those funds in the criminal case, and also intends to pursue civil forfeiture of some or all of the assets.

Sorrento Therapeutics, Inc. received approval from the U.S. Food and Drug Administration for its non-opioid painkiller patch, ZTlido (lidocaine topical system) 1.8%.

ZTlido is indicated for the relief of pain associated with post-herpetic neuralgia (PHN), also referred to as post-shingles pain. ZTlido is a major advancement in analgesics because of its proprietary adhesion technology demonstrating 12-hour wear with efficient lidocaine delivery, even during exercise. ZTlido was designed to solve a problem that is commonly reported with transdermal/topical patches: they don’t stay on.

“Post herpetic neuralgia is a perfect example of why we have an opioid crisis,” William Pedranti, chief operating officer at the Sorrento subsidiary SCILEX told Reuters. “There’s no opioids that are approved by the FDA to treat PHN (but) the number 1 prescribed product first-line is an opioid.”

“Topical lidocaine is an important option for healthcare providers to have in their armamentarium for treating PHN, a difficult-to-treat neuropathic pain,” stated Dr. Jeff Gudin, Director, Pain Management and Palliative Care, Englewood Hospital and Medical Center. “The Centers for Disease Control and Prevention’s guideline of non-opioid treatments for chronic pain recognizes topical lidocaine as an alternative first-line therapy. ZTlido now offers providers and patients this option.”

According to recent IMS data, more than 100 million prescription lidocaine patches were sold in the US in 2017. Sorrento intends to have Scilex complete the final steps necessary to commercial launch of ZTlido in the US with the objective to make the product commercially available to patients sometime in 2018.

ZTlido is comprised of a non-aqueous adhesive material containing 1.8% lidocaine, which is applied to a non-woven polyester felt backing and covered with a polyethylene terephthalate (PET) film release liner. The release liner is perforated in the middle and removed prior to application to the skin. The size of the topical system is 10 cm × 14 cm x 0.08 cm thick. ZTlido is indicated for relief of pain associated with post-herpetic neuralgia. It should be applied only to intact skin.

The treatment’s approval puts the bandage-like patch into a market currently split between Endo International Plc’s Lidoderm, which has been on the market for nearly 20 years, and generic versions of that product.

ZTlido improves upon Lidoderm by offering better adhesion and delivers equivalent doses of the pain-relieving active ingredient, lidocaine, more effectively, the company said.

“We’re not saying that it (ZTlido) is a massively better product,” Raghuram Selvaraju, an analyst at H.C. Wainwright said. “It is an incrementally better product, which we believe, is going to be actively promoted.” Selvaraju expects U.S. sales of the drug to peak at $1.1 billion in 2025.

In 2012, a five-man crew of employees of Key Energy Services, Inc. was working on an oil rig. A large sections of tubing was being pulled out of the well hole. A wet box was being used to deflect a liquid that was coming out with the tubing, in order to avoid getting crew members wet.

A sudden release of pressure from the well tubing caused a powerful blast; which blew the wet box upward and into a tree. After the blast, Norberto Gomez was found lying on the floor, with a head wound; he was hospitalized with a fractured skull.

The DIR Division of Occupational Safety and Health was notified, and dispatched an investigator. Cal/OSHA requested Key Energy’s Form 300 log, which is a log in which employers are required to record work-related injuries.

In June 2013, the Division issued four citations to Key Energy, including a citation for failing to fully complete the Form 300 log entries. The Form 300 citation was based on the failure to include complete information in column F, identifying the “object/substance that directly injured or made person ill.”

Key Energy appealed the citations. The ALJ issued a decision upholding the Form 300 citation and imposed a $450 penalty. Key Energy petitioned for reconsideration. The Board denyied the petition for reconsideration. Key Energy then petitioned the superior court for a writ of mandate directing the Board to vacate its decision on the citation in issue. The trial court denied the writ. Key Energy appeals that denial.

The employer contends substantial evidence did not support the Board’s finding that it violated the regulation. The court of appeal concluded that substantial evidence supports the finding of violation in the unpublished case of Key Energy Services, Inc. v. Cal. Occupational Safety and Health Appeals Bd.

The heading of Form 300 column F states: “Describe injury or illness, parts of body affected, and object/substance that directly injured or made person ill. (e.g. Second degree burns on right forearm from acetylene torch).” For Gomez’s injury, the entry in column F reads: “Fractured skull-Forehead.”

The ALJ rejected Key Energy’s argument that it was only required by the regulation to “use” Form 300, not to fully complete it. “It would be pointless to require employers to use the form 300, but not require them to fill it out correctly and completely.” The ALJ added: “Even if Employer were unsure as to what actually caused the injury on December 10, 2012, Employer could have recorded ‘unknown’ in column ‘F.’ “

The court of appeal noted that the record contains no evidence supporting Key Energy’s argument. It offered no evidence regarding the reason for its omission of information from column F of Form 300 for Gomez’s accident. Shortly after the accident that injured Gomez, Key Energy conducted itself as if the wet box were the object that directly injured him. The record contained substantial evidence that Gomez was struck by the wet box.