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Employee’s Admission Limits Power Press Exception

Heriberto Hernandez was an employee of Thermal Structures Inc. As part of his job, he used a power press to shape sheet metal. The press was not supposed to operate unless two buttons were pushed simultaneously. The buttons were mounted on a pedestal, three and a half feet apart from each other The pedestal was separate from the main body of the press, though connected to it by a cable. Hernandez suffered a gruesome on-the-job injury when his hands were crushed in the power press.

Under the worker’s compensation exclusivity rule (Lab. Code, § 3600, subd. (a)), and under the power press exception to that rule (Lab. Code, § 4558), Hernandez cannot recover against his employer in the tort action he filed against Thermal Structures, Inc. unless he can show that the accident occurred because Thermal either removed or failed to install a point of operation guard on the press.

The trial court granted the employer’s summary judgment ruling that there was no triable issue of fact that would cause this exception to the exclusive remedy to apply. Hernandez appealed, and the Court of Appeal sustained the dismissal in the unpublished case of Hernandez v Thermal Structures Inc.

When the accident occurred, the press did have a point of operation guard — two buttons, mounted on a pedestal; the press was not supposed to operate unless both buttons were pushed simultaneously. Hernandez’s theory was that Thermal “removed” the guard by adding wheels to the pedestal, which allowed the pedestal to move so close to the main body of the press that he could push the buttons with his elbows while his hands were still dangerously close to the press.

The problem with this theory was that, in discovery, Hernandez admitted that (1) Thermal did not remove a point of operation guard, (2) no changes were ever made to the press, and (3) the buttons were not being pushed when the accident occurred. Hernandez argues that the questions he was asked on this topic — and hence his responses — were ambiguous. The Court of Appeal reviewed his question and answer. “So as far as you know, no changes were ever made to the machine?”; he answered, “That I know of, no.” The Court concluded that this “was unambiguous and flatly inconsistent with his later testimony that Thermal added wheels.”.

Accordingly, the trial court properly granted summary judgment in favor of the employer.

Hospital Acquired MRSA Infections Reduced by 54%

MRSA infections are often picked up while patients are in the hospital being treated for something else. When they are being treated for an industrial injury, the infection can become a compensable consequence claim. Symptoms of a staph infection include small red bumps on the skin, which can turn into more severe sores. When the bacteria spread past the skin, they may cause life-threatening infections in bones, organs and the bloodstream.

Hospitals and other healthcare providers have been making a big push to cut down on transmission of MRSA inside their facilities. Reducing methicillin-resistant Staphylococcus aureus (MRSA) in both healthcare and community settings continues to be a high priority for the Centers for Disease Control and Prevention. The agency is engaged in several short- and long-term surveillance (infection tracking) projects that involve collaboration with partners including health departments, individual hospitals, and academic medical centers, among others. Understanding the burden of MRSA – how much is occurring, where it is happening, and how it is being spread – is essential for developing effective prevention programs and measuring their impact.

In 2010, encouraging results from a CDC study published in the Journal of the American Medical Association showed that invasive (life-threatening) MRSA infections in healthcare settings are declining. Invasive MRSA infections that began in hospitals declined 28% from 2005 through 2008. Decreases in infection rates were even bigger for patients with bloodstream infections. In addition, the study showed a 17% drop in invasive MRSA infections that were diagnosed before hospital admissions (community onset) in people with recent exposures to healthcare settings.

This study (or report) complements data from the National Healthcare Safety Network (NHSN) that found rates of MRSA bloodstream infections occurring in hospitalized patients fell nearly 50% from 1997 to 2007.

In newer CDC studies reported in Reuters Health, researchers analyzed 2011 data on infections from selected counties in nine U.S. states, and compared it to a 2005 CDC report on MRSA incidence. Overall, the number of serious MRSA infections diagnosed while people were in the hospital fell by 54 percent between 2005 and 2011 – from about 9.7 infections per 100,000 people to about 4.5 per 100,000 people. The incidence of serious infections diagnosed while people were home but after being in contact with a healthcare setting also decreased, by about 28 percent, during that time – from 21 infections per 100,000 people to about 15 infections per 100,000 people.

While the new study cannot explain why infection rates are dropping, it’s likely attributable, in part, to hospital efforts to reduce the spread of infections. “It’s also possible that there has been evolution of these strains and they’re less invasive,” Dr. Franklin Lowy, from the Columbia University College of Physicians and Surgeons in New York who wrote an editorial accompanying the new study in JAMA Internal Medicine, said.

WCIRB Recommends 6.9% Rate Increase

The Workers’ Compensation Insurance Rating Bureau’s Governing Committee voted unanimously last week to authorize the WCIRB to submit a Jan. 1, 2014 Advisory Pure Premium Rate Filing to the California Insurance Commissioner. The pure premium rates for the 494 standard classifications proposed to be effective January 1, 2014 average $2.70 per $100 of payroll. This is $0.17, or 6.9%, greater than the corresponding industry average filed pure premium rate of $2. 53 as of July 1, 2013.

The proposed advisory pure premium rates reflect deterioration in the projected cost of losses and loss adjustment expenses of approximately 5.9 % as compared to the WCIRB’s amended January 1, 2013 filing. Below are some of the reasons for the recommended increase.

SB 863 provided for significant increases to permanent partial disability maximum weekly benefits effective January 1, 2014. While policies incepting in 2013 were partially impacted by the January 1, 2014 SB 863 permanent disability benefit increases, the full impact of these increases will be reflected in policy year 2014 cost levels. Almost one-third of the 5.9% deterioration in the indicated pure premium rate level is attributable to the January 1, 2014 SB 863 increases in permanent disability benefits.

In general, for many years, indemnity claim frequency has declined. This decades-long decrease in indemnity claim frequency, which has averaged approximately 3% to 4% per year, is attributable to multiple factors including long-term shifts from heavy manufacturing to a more service-based economy, increased mechanization within industries, and increased employer-sponsored safety efforts. However, in 2010, there was a sharp increase in claim frequency that was partly attributable to a spike in cumulative injury claims in the immediate post-recession environment. Rather than returning to the long-term pattern of decline, indemnity claim frequency in 2011 and 2012 remained high and early indicators for 2013 suggest a further indemnity claim frequency increase.

An increase in cumulative injury claims has been a driver in the recent high level of indemnity claim frequency. Not only does an influx of cumulative injury claims affect indemnity claim frequency, but WCIRB research has indicated that changes in the proportion of indemnity claims involving cumulative injuries is a strong predictor of changes in the number of non-cumulative injury indemnity claims.

The pure premium rates approved by the California Insurance Commissioner are only advisory in that insurers may, and often do, file and use rates other than those approved by the Insurance Commissioner.

Employers “Cautiously Optimistic” About Rate Increases

An article in the Insurance Journal says that the reaction from an employers’ group to a suggested hike in California’s advisory workers’ compensation rates of nearly 7 percent was – surprisingly – cautiously optimistic. The Workers’ Compensation Action Network, a group that represents the interests of employers, expressed hope that reforms ushered in last year will take hold and keep rates from continuing to head upward.

“It’s too early to tell whether the 2012 reforms will help blunt or reverse the trend,” Jerry Azevedo, a WCAN spokesman said. “The system is in the process of absorbing substantial benefit increases under SB 863. Regulators are only partially through their efforts to implement a variety of process changes intended to make the system work more efficiently. These changes, however, were really intended to offset the benefit increase, rather than cut costs.” What the group finds most distressing has been a 35 percent increase in premiums since 2009 is that the both the cost and frequency of claims now seem to be trending up again in 2013 after a few flat years. “It’s too early to tell whether the 2012 reforms will help blunt or reverse the trend,” Azevedo said. “The system is in the process of absorbing substantial benefit increases under SB 863. Regulators are only partially through their efforts to implement a variety of process changes intended to make the system work more efficiently. These changes, however, were really intended to offset the benefit increase, rather than cut costs.”

“The margin of error in getting the SB 863 reforms right is very small, and we still won’t know their impact for months or years,” Azevedo said. “There’s also litigation and other attacks that could undermine what the legislature was attempting to achieve. We’re cautiously optimistic, but employers continue to look for ways to make the system more fair and efficient for all parties.”

Insurance Fraud Survey Predicts More to Come

Insurance fraud is on the rise That’s the consensus of a majority of respondents to a 2013 survey commissioned by FICO. With just a few exceptions, most survey respondents expect most categories of personal lines to experience an increase in fraud losses of 10% to 20% or more in 2012 versus the prior year. A majority of those surveyed, more than 60%, attribute the continued rise in fraud, more than any other factor, to sustained economic hardship in America.

Some 57% of respondents anticipate an increase in personal property fraud by individual policy holders. Around 58% said the same for personal auto insurance fraud, and 69% expect a rise in workers’ compensation fraud.

Only around 11% of respondents view criminal gangs as the number-one factor driving insurance fraud increases. Yet 61% expect to see an increase in auto insurance fraud perpetrated by organized rings, and 55% believe the same for workers’ compensation fraud. This underscores a growing need for solutions that enable insurers to identify organized criminal activity. Some 30% of respondents report that they are already using link analysis in their efforts to detect fraud today, applying predictive analytics to find patterns among different claims that suggest organized activity.

When asked to identify their major priorities in the fight against fraud (from a list of 12 choices), 52.2% cited the detection of fraud in a claim before it is paid, and 39.6% cited adopting or upgrading their fraud analytics capabilities. These two top priorities go hand in hand –predictive analytics offer the most effective and efficient solution for accurately detecting fraud early in the claims process, enabling carriers to sharply limit their losses due to payments against fraudulent claims. About 45% of the survey respondents said they are using predictive analytics for fraud detection in their operations today, compared to around 29% using rules-based systems in an attempt to stop known types of fraud. This is a strong indication that analytics-powered solutions are becoming more widespread, although there is still plenty of room for adoption in the industry. Besides being more efficient and yielding fewer false positives compared to stand-alone, rules-based systems, analytics have the advantage of being able to adapt quickly to new and emerging fraud schemes beyond those already known.

Around 54% of the respondents surveyed employ anti-fraud teams, either centralized or dedicated to specific lines of business. However, only 20% cited the hiring of additional special investigative unit personnel among their major priorities. This suggests that many of the insurers surveyed continue to face headcount constraints, and need to figure out ways that smaller teams can work larger caseloads.

13 States Now Follow California Physician Dispensed Prescription Reforms

In 2007, California became the first state to change reimbursement rules with the intention of equalizing the prices paid for physician- and pharmacy-dispensed prescriptions.

A 2012 WCRI study found that the 2007 change in California reduced the average prices paid for physician-dispensed prescriptions to close to the prices paid to pharmacies for the same drug. After the reform, many physicians continued to dispense in California – nearly half of all prescriptions were dispensed at doctors’ offices in post-reform California.

Since then, the WCRI says that a number of states have adopted reforms similar to those in California. As of July 2013, at least 13 other states have made law or rule changes with the intention of reducing the prices paid for physician-dispensed drugs while continuing to allow physicians to dispense drugs directly to their patients. These states include Alabama, Arizona, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Michigan, Mississippi, Oklahoma, South Carolina, and Tennessee. Florida also made law changes, effective July 2011, that were aimed at eliminating so-called pill mills by prohibiting all Florida physicians from dispensing Schedules II and III narcotics.

A few states have sought to prohibit or severely limit physicians from dispensing prescription drugs directly to their patients. In the United States, six states prohibit physician dispensing in general; Massachusetts, New York, and Texas, Montana, Utah, and Wyoming. Louisiana limits physician dispensing of narcotics to a 48-hour supply.

According to the new WCRI study, The Prevalence and Costs of Physician-Dispensed Drugs, most states still allow physicians to dispense prescription drugs at their offices directly to the patient. Previous WCRI studies reported considerably higher prices paid for physician-dispensed prescriptions when compared with prices paid to pharmacies for the same drug. These studies also reported rapid growth of physician dispensing in several study states.

UCLA Study Says “Futile Treatment” Common in ICUs

A new study published in the JAMA Internal Medicine and summarized by Reuters Health says that more than one in ten patients being treated in intensive care units (ICUs) was at some point receiving what doctors deemed to be futile care. In those cases, critical care doctors believed people would never survive outside an ICU or that the burdens of their care “grossly outweighed” any benefits. And, researchers found, treating each of those patients cost about $4,000 every day.

“Many physicians find that the provision of futile care is not only contradictory to their professional responsibility, but harmful to patients,” Dr. Neil Wenger, director of the UCLA Healthcare Ethics Center at the David Geffen School of Medicine, and senior author of the study, said. “The biggest issue, more important than the cost issue, is the use of highly advanced medical care that was designed to rescue people that instead gets used to prolong the dying process,” such as ventilators and medicines that raise blood pressure, he told Reuters Health.

For their study, Wenger and his colleagues first convened a group of 13 doctors who worked in critical care to agree on a definition of futile treatment. Categories included care for patients who were permanently unconscious or for whom death was imminent, or treatment that could not achieve the patient’s goals.

Then, the researchers surveyed the attending critical care specialist in five ICUs every day for three months about each of that doctor’s patients to find out how many were receiving futile care under the focus group’s definition. During the study period, 36 doctors assessed 1,136 patients, with an average of six assessments per patient. Of those patients, 123 – or 11 percent – were determined to be receiving futile treatment, and another 98 (8.6 percent) were perceived as receiving probably futile treatment.

Eighty-four of those receiving futile care died before discharge, and another 20 died within six months of their ICU stay, the researchers reported in JAMA Internal Medicine. The rest were left in “severely compromised” states, with many kept alive by machines. Wenger and his team calculated hospital costs for futile care were about $4,000 per day, adding up to $2.6 million of treatment provided unnecessarily.

Dr. Michael Niederman, chair of the department of medicine at Winthrop-University Hospital in Mineola, New York, said how often futile care is provided is likely to vary between ICUs. “It’s very difficult to come up with a definition of futile care,” he told Reuters Health. “I think there are many things we do where over time we realize we’re unable to help the patient.”

Niederman, who has studied futile care but wasn’t involved in the new research, said along with the costs of providing intensive care that is unlikely to help, there may be times when such treatment hurts other patients as well. For example, many very sick patients in the ICU are on antibiotics, even if they don’t currently have an infection. One study he cited showed one quarter of them developed multi-drug resistant bacteria – which could then be spread to other patients on the unit.

Of course, the researchers said, doctors are not making treatment decisions on their own, and families may have different opinions on what constitutes futile care, or when the benefits of treatment outweigh the burdens. “Many times family members have a sense of guilt and responsibility to their loved ones that they want everything done, and I think many times they don’t understand what it means to do everything,” Niederman said.

“The implied discussion here is, do we have the resources in this country to give people care whenever they want it regardless of whether we think the care has benefit?” he said. “That’s a very difficult discussion.” Wenger said for him, the study highlights the importance of having conversations with patients about their end-of-life care while they are still able to participate in those talks. “It’s a very complex process making decisions for very ill patients who are on the brink of death,” he said. “The main message is that early discussions and advance planning are absolutely critical.”

Hospitalizations for Valley Fever Increase In California

Coccidioidomycosis commonly known as “cocci” or “valley fever” as well as “California fever” and “San Joaquin Valley fever” is a fungal disease.that is sometimes claimed to be an industrial injury especially among construction workers or those exposed to newly excavated work sties.

It is endemic in certain parts of Arizona, California, Nevada, New Mexico, Texas, Utah and northern Mexico. It is dormant during long dry spells, then develops as a mold with long filaments that break off into airborne spores when the rains come. The spores, known as arthroconidia, are swept into the air by disruption of the soil, such as during construction, farming, or an earthquake.

Infection is caused by inhalation of the particles. The disease is not transmitted from person to person. The infection ordinarily resolves leaving the patient with a specific immunity to re-infection. However, in some cases the infection may manifest itself repeatedly or permanently over the life of the patient. In those cases the industrial claim may be costly.

The U.S. national public health institute Centers for Disease Control and Prevention (CDC) called the disease a “silent epidemic” and acknowledged that there is no proven anticoccidioidal vaccine available.

And now a new CDC report shows an increase in California hospitalizations for Coccidioidomycosis over the last decade. Only 719 cases were reported annually in 1998. The annual number showed a steady increase up through 2011 when 5697 cases were reported. The incidence rate per 100,000 population increased from 2.1 in 1998 to a record of 14.9 in 2011 as well.

Similar increases were reported in Arizona, Nevada, New Mexico and Utah.

DWC Schedules QME Process Webinar for September 19

The Division of Workers’ Compensation’s (DWC) invites claims administrators, attorneys, and others to attend this online web training on the Qualified Medical Evaluator (QME) panel request process in order to obtain tips on how to successfully submit represented panel QME requests and to gain tools to make panel requests easier and more efficient leading to a shorter wait time to receive panels. The course will also help avoid common errors in incomplete or inappropriate requests.

The DWC says that up to 90% of represented panel QME requests are improperly submitted since SB 863 changes were implemented.

The course “The QME Process: How to Successfully Request a Represented Panel ” will take place online on Thursday, September. 19 from 2:00 to  3:00 PM. Pre-registration is not required for this free webinar meeting; however ports available for the training are limited. Attendees are encouraged to gather in groups to participate in this online training. The technical specifications for accessing the webinar are posted on the DWC website.

Please note, in order to save time before the meeting, check your system to make sure it is ready to use Microsoft Office Live Meeting. The audio option is not available when you choose the web access option for the webinar program. Instead, launch the Microsoft Live Meeting Client (requires software download). The software download takes approximately 15 to 20 minutes. We recommend that you login approximately 5 minutes before the meeting.

Anaheim Physician and Accomplice Get Jail Time for Fraud

Dr. Sri J. “Dr. J” Wijegunaratne of Anaheim and Godwin Onyeabor of Covina were convicted of fraudulently billing Medicare for medically unnecessary equipment and receiving paid kickbacks.

The Glendora Patch reports that Dr. Sri J. “Dr. J” Wijegunaratne was sentenced to 27 months for recommending motorized wheelchairs and other equipment that patients did not need and sometimes never used, according to Department of Justice prosecutors.

Co-defendant Godwin Onyeabor, who ran a San Bernardino medical supply firm, fraudulently billed Medicare for the medically unnecessary equipment and paid kickbacks to the doctor, according to the DOJ. Onyeabor, 50, of Covina, was sentenced to 51 months in federal prison.

During trial in Los Angeles federal court, several Medicare beneficiaries testified that they were lured to clinics with the promise of free items such as vitamins and juice, only to receive motorized wheelchairs that they did not need or want.

Over about five years, Onyeabor, Wijegunaratne and others submitted about $1.5 million in false claims to Medicare and received nearly $1 million in reimbursements, according to the DOJ. Wijegunaratne and Onyeabor were each found guilty in April of conspiracy and health care fraud charges.

Two others defendants, Heidi Morishita and Victoria N. Onyeabor, are scheduled to be sentenced Sept. 30 and Oct. 7, respectively.