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Court of Appeal Reverses 100% Fibromyalgia Award and Fixed 4.6% COLA

Elsie Martinez was employed by Southern California Edison until 2004, when she allegedly became unable to work. During her employment with SCE, Martinez was a systems computer programmer. Her work involved repetitive use of her upper extremities. The parties stipulated that she had suffered two industrial injuries which gave rise to two separate workers’ compensation claims: (1) a specific injury to her neck, right shoulder, right wrist, right hand and psyche, which occurred on June 15, 2001, giving rise to the specific injury claim; and (2) a cumulative trauma injury, which arose over the entire period of Martinez’s employment (February 1998 through May 21, 2004), and caused injury to her lumbar spine, cervical spine, both shoulders, both wrists, both hands and psyche, giving rise to the cumulative trauma or CT claim.

The WCJ found that orthopedic and psychiatric impairments in the 2001 specific injury case entitled Martinez to 29% permanent disability, after apportionment. The WCJ found that Martinez’s fibromyalgia entitled her to a 100% permanent disability rating in the CT case and did not apportion any of her permanent total disability to the specific injury or to nonindustrial causes. The WCJ purported to base his decision on the CT claim on the opinion of independent medical evaluator Seymour Levine, M.D., a rheumatologist, who erroneously believed that Martinez had not suffered a specific injury in 2001.

Dr. Levine did not apportion between the specific injury claim and the CT claim as he explained in his report: “The cover letter points out that this patient has filed a claim for a specific incident that was said to have occurred on June 15, 2001. I asked the patient about this specific incident. She told me that there was not a specific injury that occurred on that date. It was on that date that she reported her medical problems.” As a result of his belief that Martinez had suffered no specific injury in June 2001, Dr. Levine concluded that “[T]he injurious exposure in this patient’s case, in my opinion, is one period of cumulative trauma for the dates of February 1998 through May 21, 2004.”

The WCAB denied SCE’s petition for reconsideration of the CT claim and adopted the WCJ’s decision. The award was reversed by the Court of Appeal in the unpublished case of Southern California Edison v WCAB (Martinez).

The opinion noted that labor code section 4664, as amended in 2004, provides that “the employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.” The 2004 legislation represented “a diametrical change in the law with respect to apportionment . . . .” “[T]he new approach to apportionment is to look at the current disability and parcel out its causative sources — nonindustrial, prior industrial, current industrial — and decide the amount directly caused by the current industrial source. This approach requires thorough consideration of past injuries . . . .” The evidence presented here strongly suggests that one or more of Martinez’s disabilities caused by the cumulative trauma overlap with those attributable to the specific injury. In sum, the WCJ’s decision to allow Martinez an unapportioned award for the CT claim rests on a misinterpretation of Dr. Levine’s opinion about the causes of Martinez’s 100% disability and a failure to acknowledge that Dr. Levine’s view that there was no specific injury was wrong, a circumstance that removed overlap and apportionment from his medical reporting.

The Court of Appeal also noted that the WCJ calculated a COLA at the fixed rate of 4.6%. “We find no justification for inflating the award at a flat, unvarying rate of 4.6%. Neither inflation nor the cost of living, nor average wages, increase from year to year at the unvarying rate of 4.6%. Moreover, all of these factors (COLA, inflation, average wages) are more properly the subject of expert testimony, and there was no testimony, expert or otherwise, to support the 4.6% figure.”

Accordingly, the findings of fact and the award on the CT claim must be annulled and the matter remanded for further proceedings. Upon remand, the WCJ must determine whether there is an overlap between the disabilities caused by the CT claim and the specific claim, and, if there is, to apportion the award on the CT claim between the cumulative trauma, the specific injury, and nonindustrial causes.

New Health Care Fraud Alliance Formed

A U.S. public-private alliance co-founded by Blue Cross/Blue Shield Association, AARP, the Identity Theft Resource Center, and others will officially launch next month to fight medical identity theft amid a sickening spike in this form of fraud.

The new Medical Identity Fraud Alliance (MIFA), whose other founders include the Consumer Federation of America, the National Healthcare Anti-Fraud Association, and ID Experts, is aimed at combating medical ID theft by getting together key players and establishing solutions and best practices, technologies, research, as well as educating and helping empower consumers to better protect their increasingly targeted health information. MIFA will also provide a venue for information- and attack intelligence-sharing.

The FBI and U.S. Secret Service will participate in a liaison capacity with MIFA, and the alliance has reached out to both the Federal Trade Commission and Department of Justice. “Medical identity theft is being called the fastest-growing type of fraud,” says Robin Slade, a development coordinator for MIFA, who hails from the fraud-detection side of the financial services industry. “It contributes to the increasing cost of health care.”

Slade says there were 1.85 million victims of medical ID fraud last year, but most insured adults are unaware of this new form of crime, which comes with the added risk of physically endangering the victim. Some 40 percent of medical ID theft victims have had their health insurance canceled due to fraudulent charges; victims spend thousands of dollars and more than a year’s worth of time trying to recover from the fraud, says Bill Barr, a development coordinator with MIFA and co-founder of the Smart Card Forum.

Medical identity theft typically stems from individuals sharing their insurance or other medical information with family or friends, or when health-care organizations suffer breaches that expose patient data. Some 94 percent of U.S. health-care organizations have been hit by at least one data breach, and close to half have suffered more than five breaches in the past two years, according to The Ponemon Institute’s Third Annual Benchmark Study on Patient Privacy and Data Security, published late last year, which was commissioned by ID Experts, one of the co-founders of MIFA.

While about half of victims of medical ID fraud know the perpetrators who abuse their information — typically a family member or friend — according to Ponemon’s data, cybercriminals are increasingly targeting this type of information, too. Underground forums sell packages of stolen information on victims, including so-called “kitz” that include bank account credentials, Social Security numbers, health insurance credentials, and phony driver’s licenses or other IDs. These sell for $1,200 to $1,300, according to Dell SecureWorks, which recently uncovered some of these scams.

Health insurance credentials go for about $20 apiece, plus another $20 for dental, vision, or chiropractic plans, for instance. Buyers are using the health insurance information to get free medical services, drugs, and surgeries, according to Dell SecureWorks.

A perfect storm is brewing for medical ID fraud with the nationwide move to electronic health records, combined with the new health-care law yielding new health-care exchanges and newly insured Americans, Slade says. “It’s a combination of the ‘electronification’ of the data and the increase in data breaches. Plus most consumers are unaware that this [threat exists],” she says.

CVS Pharmacy Refuses Opioid Prescriptions From 36 Suspect Doctors

CVS Caremark Corp said on Wednesday that it has taken the unusual step of cutting off access to powerful pain-killers for more than 36 doctors and other healthcare providers found to prescribe the drugs at an alarmingly high rate. The drugstore chain, which was drawn into a government crackdown on prescription painkiller abuse last year, began revoking the dispensing privileges of certain providers in late 2012, said CVS Chief Medical Officer Troyen Brennan. “This isn’t a definitive solution to the problem,” Brennan told Reuters. “We wanted to share what it was that we did and have other people in healthcare, including other pharmacies, look at what we did and discuss what some more comprehensive solutions might be.”

CVS disclosed the suspensions in an article published on Wednesday on the website of the New England Journal of Medicine. “At CVS, we recently instituted a program of analysis and actions to limit inappropriate prescribing. Our program was intended to identify and take action against physicians and other prescribers who exhibited extreme patterns of use of ‘high-risk drugs’ relative to other prescribers.”

CVS identified high-risk prescribers by benchmarking them against others on several parameters. It used data from submitted prescriptions from March 2010 through January 2012 for hydrocodone, oxycodone, alprazolam, methadone, and carisoprodol. Prescribers were compared with others in the same geographic region who had the same listed specialty. The first parameters were the volume of prescriptions for high-risk drugs and the proportion of the prescriber’s prescriptions that were for such drugs, as compared with the volume and proportion for others in the same specialty and region; the thresholds for suspicion were set at the 98th percentile for volume and the 95th percentile for proportion.

Next, prescribers were evaluated with regard to the number of their patients who paid cash for high-risk-drug prescriptions and the percentage of their patients receiving high-risk drugs who were 18 to 35 years of age. In both cases, the thresholds for suspicion were set at the 90th percentile among clinicians in the same region and specialty.

Finally, CVS compared the prescriptions for noncontrolled substances with the prescriptions for controlled substances within the prescriber’s practice on the same parameters. CVS initially identified 42 outliers from the database of nearly 1 million prescribers. To minimize the possibility that CVS would suspend dispensing privileges for clinicians who were appropriately treating patients, it attempted to interview physicians who were identified as outliers to ascertain the nature of their practice and their use of controlled substances. After further screening, 36 met the criteria for suspension.

Pharmacists have an ethical duty, backed by both federal and state law, to ensure that a prescription for a controlled substance is appropriate. The DEA has now identified both pharmaceutical distributors and chain pharmacies as part of the problem, encouraging the industry to develop new programs to reduce inappropriate use.

DWC Posts Fourth Modification to SJDB Regulations

The Division of Workers’ Compensation (DWC) has posted a fourth 15-day notice of modification to the supplemental job displacement benefit regulations to the DWC website. Members of the public are invited to present written comments regarding the proposed modifications to dwcrules@dir.ca.gov until 5 p.m. on September 6.

Section 10133.31 (Supplemental Job Displacement Nontransferable Voucher for Injuries Occurring on or After 1/1/13) subdivision (f)(5) is amended to allow injured workers to submit a written invoice for computer equipment to be paid directly to the retailer. The employer may also offer to provide the computer equipment directly to the employee. Subdivision (j) is amended to indicate that if computer equipment is provided, it must be provided to the employee within 45 days of receipt of the Request for Purchase of Computer Equipment.

The form (DWC-AD 10133.32 – Supplemental Job Displacement Nontransferable Voucher for Injuries Occurring on or After 1/1/13) is amended to conform with the proposed changes to Section 10133.31. The form is amended to include a separate box that the employee can select if the employer or claims administrator offers to provide the computer directly to the employee.

The notice, text of the regulations, and forms can be found on the proposed regulations page.

OxyContin Drugmaker Has Database of Rogue Doctors

The Los Angeles Times says that over the last decade, the maker of the potent painkiller OxyContin has compiled a database of hundreds of doctors suspected of recklessly prescribing its pills to addicts and drug dealers, but has done little to alert law enforcement or medical authorities.Despite its suspicions, Purdue Pharma continued to profit from prescriptions written by these physicians, many of whom were prolific prescribers of OxyContin. The company has sold more than $27 billion worth of the drug since its introduction in 1996.

Purdue has promoted the idea that the country’s epidemic of prescription drug deaths was fueled largely by pharmacy robberies, doctor-shopping patients and teens raiding home medicine cabinets. The database suggests that Purdue has long known that physicians also play a significant role in the crisis.

Purdue’s database, which contains the names of more than 1,800 doctors, could provide leads for investigators at a time when they are increasingly looking at how reckless prescribing of painkillers contributes to addiction and death. Purdue has said little about the list since it began identifying doctors in 2002. A company scientist offered a glimpse into the database at a June drug dependency conference in San Diego, noting it was the first time the program had been discussed in public.

In a series of interviews with The Times, Purdue attorney Robin Abrams said the company created the database to steer its sales representatives away from risky doctors. Policing physicians, she said, was not Purdue’s responsibility. “We don’t have the ability to take the prescription pad out of their hand,” she said.Abrams said the company had alerted law enforcement or medical regulators to 154 of the prescribers – about 8% of those in its database. The company’s tally could not be independently verified. Asked to provide cases reported to law enforcement, she identified three Southern California physicians implicated in major schemes to funnel OxyContin to addicts and dealers.

One of them, Masoud Bamdad of San Fernando, took in $1.5 million a year prescribing OxyContin and other painkillers to young addicts. He is serving a 25-year prison sentence on a drug dealing conviction. Bamdad was linked by prosecutors to six patient deaths. Another doctor, Eleanor Santiago, is awaiting sentencing on federal charges that she helped flood Los Angeles’ black market with more than 1 million illicit doses of OxyContin. Physician Kevin Gohar was linked to a suspected prescription mill in Reseda that authorities say sold OxyContin prescriptions to addicts across Southern California. Gohar died of a drug overdose in 2011 while a criminal investigation was pending.

Mitchell Katz, director of the Los Angeles County Department of Health Services, said Purdue has a duty to report all the doctors on the list, not just a select few. “There is an ethical obligation,” said Katz, a critic of what he says is the overuse of painkillers. “Any drug company that has information about physicians potentially engaged in illegal prescribing or prescribing that is endangering people’s lives has a responsibility to report it.”

Two state senators on Monday called on the maker of OxyContin to turn over the names of California physicians it suspects recklessly prescribed its pills to drug dealers and addicts.

DWC Posts New Changes to MTUS

The Division of Workers’ Compensation (DWC) has posted proposed changes to the existing Medical Treatment Utilization Schedule (MTUS) regulations to the online forum where members of the public may review and comment on the proposals.

“These changes to DWC’s evidence-based medical treatment guidelines provide a critically needed framework describing best practices for providing medical care for work-related illnesses and injuries,” said DWC Executive Medical Director Dr. Rupali Das. The proposed updates to the MTUS were developed in cooperation with the multidisciplinary Medical Evidence Evaluation Advisory Committee (MEEAC).

The proposed amendments to the MTUS regulations modify regulatory definitions, which includes a definition for Evidenced Based Medicine, and adds new definitions for terms used in the strength of evidence methodologies. The regulations clarify the role of the MTUS in accordance with Labor Code section 4600 and set forth the process to determine if medical care is reasonable and necessary when the MTUS is inapplicable.

In situations where the MTUS is inapplicable, the regulations state that medical care shall be in accordance with the recommendations supported by the best available medical evidence. To determine the best available medical evidence, the regulations set forth strength of evidence methodologies to evaluate both the quality of medical treatment guidelines as well as the quality of evidence in studies published in the medical and scientific literature.

The regulations also amend the composition of the MEEAC to include two additional members, one from the pharmacology field and one from the nursing field. “The addition of these areas of expertise will enhance this distinguished committee,” said Das.

The proposed changes to the MTUS regulations start with section 9792.20 of title 8 of the California Code of Regulations. The forum is located on the DWC website.

California High On National List of Comp Cost Increases – Again!

The National Academy of Social Insurance has issued its16th annual report on national workers’ compensation benefits, coverage, and costs. This report presents new data on workers’ compensation programs for 2011 and updates estimates for 2007 – 2010 with newly available data. The revised estimates in this report replace estimates in the Academy’s prior reports.

In 2011 workers’ compensation programs managed by the 50 states, the District of Columbia, and the federal government paid $60.2 billion in benefits, an increase of 3.5 percent from the $58.2 billion in benefits paid in 2010. In 2011 medical payments to providers increased by 4.5 percent, to $29.9 billion, and cash benefits to injured workers increased by 2.6 percent, to $30.3 billion. Costs to employers rose by 7.1 percent in 2011, to $77.1 billion. In 2011 workers’ compensation covered an estimated 125.8 million workers, an increase of 1.1 percent from the previous year. Aggregate wages of covered workers increased by 3.9 percent.

All states showed increases in both numbers of covered workers and dollars of covered wages in 2011.

In 2011, the total amount of benefits paid to injured workers increased in 29 jurisdictions and decreased in 22. The largest percentage increases in benefits occurred in Virginia (12.5%), Iowa (12.2%) and New York (10.7%). California had the sixth highest percentage increase in the nation at 8.4% . The largest percentage decreases in benefits occurred in Nevada (-11.3%), Oregon (-10.1%) and New Hampshire (-9.6%). Between 2010 and 2011,

Employers’ costs of workers’ compensation per $100 of covered payroll increased in 35 jurisdictions, and declined in sixteen. The largest increases were in Wisconsin (14 cents), Wyoming (14 cents), Iowa and Washington (13 cents). California had the 9th highest increase in the nation for 2011 at 8 cents increase per $100 of covered payroll.. Some of the largest decreases were in West Virginia, Montana, and Ohio.

Study Says Patients Confused About Post Hospitalization Care

Patients may think they understand everything doctors tell them when they are released from the hospital, but a new U.S. study summarized by Reuters Health found several gaps in what they remember and areas where instructions could be clearer. Out of nearly 400 patients discharged from a large academic medical center, 96 percent reported knowing why they had been hospitalized, but only about 60 percent could accurately describe their diagnoses, for instance. “Patients were very positive, but when we asked them about actual facts, they could not tell us,” said Dr. Leora Horwitz, the study’s lead author from the Yale School of Medicine in New Haven, Connecticut.

For the new study, Horwitz and her colleagues asked 395 people age 65 and older about their experience after being discharged from Yale-New Haven Hospital between May 2009 and April 2010. They compared those patients’ responses to what was written in their medical charts and the instructions they were given when they were released.

The majority received instructions that included easy-to-understand language about what symptoms to watch out for and advice about activities and diet, but about a quarter of the instructions used medical jargon to explain the patient’s medical condition. For example, instead of saying the person had a “heart attack,” the instructions used the technical term “myocardial infarction.” About 35 percent of patients had trouble explaining why they were in the hospital. What’s more, about half of the patients recalled their doctor having scheduled a follow up visit while the medical records showed only about 33 percent actually had one scheduled. Also, less than one third of patients reported being told while hospitalized about their upcoming discharge more than a day in advance. Two-thirds of patients did recall being asked whether they would have the support they needed at home after discharge.

Hospitals are currently looking at ways to reduce the number of people who have to come back for additional care – something the U.S. government and economists say can be prevented to reduce overall healthcare spending. For people on Medicare, the government-run health insurance program for the elderly and disabled, hospital readmissions increase spending by an estimated $26 billion per year, according to federal figures. About $17 billion of that is thought to be potentially preventable. Much focus has been put on hospitals following recommended medical guidelines to reduce readmissions, though there is also some attention toward making sure patients know what to do after they leave the hospital.

Copy of Prescriptions No Longer Required With Pharmacy Bills

SB 863 created several new requirements for medical service providers when seeking reimbursement. This included the provision of a copy of a prescription for pharmaceutical services. After the passage of SB 863, several stakeholders reached out to the Legislature regarding the challenges of this requirement. Specifically, proponents note that there is no electronic method to transmit a paper prescription, and that the use of paper prescriptions is becoming increasingly rare. Additionally, some stakeholders have noted that other states have used electronic prescriptions, rather than paper prescriptions, as a method for combating opioid abuse.

Proponents of this new law noted that the Division of Workers Compensation’s electronic billing standard for pharmacy bills does not currently support the inclusion of attachments, making pharmacy billers unable to comply. Proponents also argue that a list of billed components provides the same information as prescription for pharmaceutical drugs, and that the requirement of a prescription may impact a pharmacy’s ability to fill workers’ compensation prescriptions, limiting access to medically necessary medication.

The California legislature has passed, and Governor Brown has signed SB146 which amends labor code section 4602.3. to correct these problems. S.B.146 was enacted as an “urgency statute” and thus it is effective immediately.

This new law (1) provides that a copy of a prescription for pharmaceutical services is not necessary unless the provider of services has entered into a written agreement, as specified, that requires a copy of the prescription for a pharmacy service;(2) allows an employer, pharmacy benefits manager, insurer, or third-party claims administrator to request a copy of the prescription during a review of any records of prescription drugs dispensed by a pharmacy; and, (3) provides that any entity submitting a pharmacy bill for payment, on or after January 1, 2013, and denied payment for not including a copy of the prescription from the treating physician, shall have until March 31, 2014 to resubmit those bills for payment.

Claimant with Attendant Care Sentenced in Fraud Case

A San Diego father and daughter team were sentenced to local custody after pleading guilty to insurance fraud, grand theft and perjury in connection with a brazen insurance fraud scheme that lasted nine years. Yolandi Kohrumel, 35, was sentenced to one year in jail and her father, Anton Buitendag, 65, was sentenced to 180 days in jail by Superior Court Judge Duane Moring. Restitution in the amount of $1,558,653 was also ordered to be paid to ESIS, which administered the insurance claim.

Kohrumel broke her toe at work and claimed to be wheelchair bound due to complications from surgery on her foot. The defendant was paid $1.5 million in disability payments over a nine-year period until the insurance company was tipped off and obtained video of her standing, walking and lifting moving boxes for hours.

In 2002, Kohrumel worked as a manager at Staples. After working about three months, she claimed she injured her toe when a heavy box fell on her foot. In November of that year, she had surgery on her toe and was given crutches. When she claimed she could not use the crutches, she was given a wheelchair. The defendant claimed the wheelchair gave her carpal tunnel syndrome and she was given an electric wheelchair.

Despite this, she continued to represent herself as suffering from hypersensitivity of the feet, complex regional pain syndrome, depression, and anxiety. Doctors prescribed about 25 different medications for these symptoms. From the date of the surgery to the present, Kohrumel never returned to work and was paid temporary disability amounting to two-thirds of her salary, tax free.

She represented herself as needing care 24 hours a day, seven days a week since 2004. At first, care was provided by her husband until his death in September of 2011. Then, the defendant’s father, Anton Buitendag, took over her care. All of Kohrumel’s doctors believed she was totally disabled, entitling her to potential lifetime disability benefits. Given her young age, this could have totaled several million dollars.

Recently, Kohrumel and her father began demanding that he be reimbursed for the around-the-clock care they said she needed and he provided. Buitendag was seeking $324,000 in compensation for his claimed 24 hour-a-day, seven days a week care of his daughter from September 2011 through June 2013. He claimed his services were worth more than $21 an hour, which came to about $500 per day or about $182,500 a year.

The insurance company, ESIS/AIG, disputed the amount of care she needed and said they could not legally pay Buitendag because he is a South African citizen and does not have a work Visa. Kohrumel’s attorney sought to litigate this issue before the WCAB.

In addition to the benefits the defendant received, she said needed a larger place to live as her current two bedroom apartment was not large enough for her wheelchair to navigate. The insurance company hired movers to help her start the moving process and informed the workers they would have to do everything as Kohrumel was wheelchair bound. While helping Korhumel, the movers noticed she would get out of her wheelchair for extended periods of time and lift and move heavy boxes in her garage. The movers reported what they saw to the insurance company and later filmed the defendant standing for about two hours while continuously lifting, moving and looking through boxes in her garage. Korhumel was arrested and taken into custody.

On July 10, 2013, a search warrant was executed on Korhumel’s garage and more than 20 boxes of unused prescription medication were recovered. The next day both Kohrumel and Buitendag entered guilty pleas. Korhumel pleaded guilty to eight felonies counts including insurance fraud, preparing a false document, perjury and grand theft. Butiendag pleaded guilty to three felony counts of attempted grand theft.