Category: Daily News

A state correctional officer accused of playing baseball while collecting disability leave benefits for a foot injury has pleaded guilty to workers’ compensation fraud.

Todd Phillips, a correctional officer with the California Department of Corrections and Rehabilitation, was charged with intentionally making false statements regarding his physical abilities and failing to disclose participation in certain events and activities. Had his participation in those activities been known, it would have affected his workers’ compensation benefits, according to a Sacramento County District Attorney’s Office news release.

On Nov. 10, 2010, Phillips injured his right foot while working for the Department of Corrections and Rehabilitation. He continued to work after the injury until he was taken off work by his doctors on Dec. 27, 2011, pending surgery on his foot on Feb. 15, 2012. Phillips continued to tell his doctors that he was unable to return to work because of pain in his foot, prosecutors said.

While off work due to the foot injury and while receiving industrial disability leave benefits, Phillips was filmed by Department of Corrections and Rehabilitation investigators playing in nine police softball games in September 2012. He was filmed running the bases, aggressively running to catch balls in the outfield, hitting his right foot with the bat and pivoting on the right foot while swinging and hitting the ball, authorities said.

Investigators also determined through interviews with other peace officers that Phillips was an active and aggressive participant in softball games during tournaments in July and August 2012.

Sacramento Superior Court Judge Marjorie Koller ordered Phillips to serve 60 days in county jail with the sheriff’s release program recommended. He also was ordered to serve three years probation and to pay $12,823.77 in restitution to the Department of Corrections and Rehabilitation.

Ellen Sims Langille has been named to succeed Michael McClain as general counsel of the California Workers’ Compensation Institute according to Alex Swedlow, president of the Oakland-based research group.

Ms. Langille received her undergraduate degree from UC Santa Cruz and her law degree from the University of California, Hastings College of the Law. Certified as a specialist in workers’ compensation by the State Bar of California, Ms. Langille is currently a partner at the defense firm of Finnegan, Marks, Theofel & Desmond in San Francisco. She brings nearly 25 years of industry experience to the Institute, having specialized in appellate level workers’ compensation cases throughout her career, as well as having served as amicus counsel for the Institute and other organizations in a number of important cases, including Angelotti Chiropractic v. Baker; Dubon v. World Restoration; Brodie v. WCAB; Lockheed Martin v. WCAB; Stuart v. WCAB; and Avalon Bay Foods v. WCAB (Moore). In addition, she has extensive experience in client training, was the editor of “Workers’ Compensation” – California Labor Law Digest, 2014-2016, published by the California Chamber of Commerce, and has been a frequent speaker at industry seminars and conferences.

In her new capacity, Ms. Langille will manage the Institute’s internal and external legal affairs; serve as staff liaison to the Legal Committee, which directs CWCI’s amicus activities; analyze regulatory and legal issues affecting California workers’ compensation; and help develop and present research and legal programs for Institute members and other members of the workers’ compensation community.

In announcing her appointment, Mr. Swedlow said, “The Institute is fortunate to have found someone of Ellen’s caliber for this key position. Her knowledge and expertise, her reputation throughout the California workers’ compensation community, and her familiarity with CWCI’s goals, operations and staff made her an ideal choice. She will begin working at the Institute in early April which should make for a seamless transition as Mike McClain moves toward his retirement in late May.”

The Division of Workers’ Compensation has posted the Agenda and background materials for the February 17th Drug Formulary Public Meeting. The meeting is being held to solicit public input on issues relating to implementation of Assembly Bill 1124, which requires the adoption of a workers’ compensation drug formulary by July 1, 2017.

The meeting is scheduled from 10 a.m. until noon on Wednesday, February 17, 2016 in the auditorium of the Elihu Harris State Office Building, 1515 Clay Street, Oakland, CA 94612.

The Agenda and background materials may be accessed on the DWC Forum. The Agenda includes a presentation by Barbara Wynn, Senior Health Policy Analyst with RAND and a public discussion of formulary issues identified by RAND.

The DWC contracted with RAND to provide assistance in the design and implementation of the formulary and related policies and in estimating the economic impact of the formulary. Key questions that RAND researchers will address include:

1) How should the drug formulary be structured? What are the advantages and disadvantages of existing formularies that might be considered by the California WC program?
2) What implementation policies should be considered to address the AB 1124 requirements and promote the provision of appropriate pharmaceuticals expeditiously while minimizing administrative burden?
3) What are the likely impacts of implementing the formulary on drug utilization patterns and spending? What are the costs and benefits of implementing an evidence-based formulary consistent with the AB 1124 requirements for injured workers, providers,employers, and society?
4) What are the key indicators and measures that should be used to monitor implementation of the formulary?

The DWC will also gather and analyze information on potential formularies that DWC might consider and the ancillary policies that other state WC programs have adopted in implementing drug formularies, including how the formulary is integrated with medical treatment guidelines. It will consider the feasibility of DWC constructing a formulary tailored to its medical treatment utilization guidelines and review the evidence-based formularies from American College of Occupational and Environmental Medicine (ACOEM), the Official Disability Guidelines (ODG), the Washington Department of Labor and Industries, and the California Department of Health Care Services (MediCal).

The review of the regulatory policies that other WC programs have adopted in implementing a WC formulary will include the states of Ohio, Oklahoma, Texas, Tennessee and Washington.

The second-degree murder convictions last October of a Los Angeles-area physician were the first against a U.S. doctor for prescribing massive quantities of addictive and dangerous drugs to patients with no legitimate need, three of whom died of overdoses. A jury of 10 women and two men found Hsiu Ying “Lisa” Tseng, 45, guilty of 23 counts, including 19 counts of unlawful controlled substance prescription and one count of obtaining a controlled substance by fraud. The guilty verdict marks the first time in the United States where a doctor was convicted of murder for overprescribing drugs.

Tseng was convicted of second-degree murder for the deaths of Vu Nguyen, 28, of Lake Forest; Steven Ogle, 24, of Palm Desert; and Joseph Rovero, 21, an Arizona State University student from San Ramon. Nguyen died March 2, 2009. Ogle died a month later on April 9, 2009. Rovero died Dec. 18, 2009. All were patients of Tseng, who prescribed a myriad of drugs for the three young men.

Tseng, licensed to practice in 1997, opened a storefront medical office in Rowland Heights in 2005. During the timeframe when nine of her patients died in less than three years, Tseng took in $5 million from her clinic and continued dispensing potent and addictive drugs unabated.

Tseng surrendered her license to practice medicine in February 2012 and has been behind bars in lieu of $3 million bail since her March 2012 arrest.

This month she was sentenced to 30 years to life in prison for the overdose deaths, in a case that could change how doctors prescribe medication.

The 46-year-old mother of two, wearing blue jail scrubs, apologized to the families of her victims, but the judge sentenced her based on Tseng refusing to take responsibility for her actions during the trial and blaming her patients or pharmacists or even other doctors instead. “[She’]) a person who seemingly did not care about the lives of her patients in this case but rather appeared more concerned about distributing dangerous controlled substances in an assembly line fashion so as to collect payments which amounted to her amassing several million dollars,” Los Angeles County Superior Court Judge George Lomeli said.

But April Rovero, the mother of one of the victims, was mostly unmoved by Tseng’s apologies. Her son, Joey, died after mixing Xanax and oxycodone — which he had both been prescribed by Tseng — with alcohol. “It feels too late,” Rovero said outside the courtroom. “But it was better to hear something than nothing. But Rovero, who, founded the National Coalition Against Prescription Drug Abuse after her son’s death, praised the sentence. “Justice has been served,” she said.

Outside the courtroom, Peter Osinoff, who represented Tseng before the state medical board said Tseng’s prosecution has had a negative impact on physicians and patients. “The doctors are scared out of their minds,” he said. “The pendulum has swung so far. The people who need [pain medication] can’t get it now.”

Other medical experts have echoed his concerns since Tseng was charged in 2012. “When you use the word ‘murder,'” said Dr. Peter Staats, president of the American Society of Interventional Pain Physicians, “of course it’s going to have a chilling effect.” Staats said he believes an aggressive medical board — not prosecutors — should go after reckless doctors. But, he added, any doctor who is prescribing pills knowing that they are being abused or diverted shouldn’t be called a doctor.

Jose Tinoco, while employed by Fresh Express, injured Javier Escobar by negligently operating a vehicle. Escobar thereafter received treatment at Santa Clara Valley Medical Center, a hospital owned and operated by the County of Santa Clara. The reasonable value of the care provided by the County was alleged to be $1,249,545.38. Escobar sued Tinoco and Fresh Express in Monterey County Superior Court, where he eventually recovered a judgment for $5,689.624.87.

The County asserted a lien against the judgment pursuant to Government Code section 23004.1. Escobar’s attorney, who had stipulated at trial that County’s bill reflected reasonable and necessary charges, now contended that County was not entitled to the full amount of its bill but only to some lesser amount in accordance with schedules promulgated by the WCAB. Fresh Express did not pay the County, but instead delivered a check in the amount of $1,249,545.38 to Escobar’s attorney, Joseph Carcione, Jr., payable to both County and Carcione’s firm.

The County filed suit to recover the full amount, and the trial court sustained the Fresh Express demurer without leave to amend ruling that “the County can no longer pursue its own action against Fresh Express . . . , but must instead seek enforcement of the lien,” The court of appeal reversed in the published case of County of Santa Clara v Javier Escobar, and provided guidance on how lien rights are to be enforced.

The trial court concluded in essence that once a county’s lien has attached to a judgment, as it did here, the county’s independent right of action ceases to exist. The trial court took the language of Government Code section 23004.1 to mean in essence that a county’s right of action continues only as a lien. But the court of appeal disagreed noting that nothing in the language of the statute declares in definite language that the lien, once attached, is all that remains of the county’s original right of action. The manifest purpose of section 23004.1 is to provide counties with a source of recompense for the expenses incurred by them – and their taxpayers – in providing medical services necessitated by tortious conduct. “Obviously this purpose is ill served by permitting the tortfeasor to excuse itself from this obligation by turning control of the claimed funds over to the injured patient. The intent of the statute is best effectuated by providing counties with a straightforward remedy against the recalcitrant tortfeasor cum judgment creditor.”

The court agreed that Fresh Express should have been able to disentangle itself from any dispute between Escobar and County, and to obtain a satisfaction of judgment by paying the full amount of the judgment, but did not agree that it could accomplish these objectives by simply writing a check payable to both of the competing claimants. There were and are far more suitable remedies for one in Fresh Express’s situation. It has simply failed to avail itself of them. It could, for example, bring an action against the conflicting claimants to compel them to interplead and litigate their several claims.

“We conclude that County’s right of action under section 23004.1 survived the attachment of its lien and that County was entitled to revive it, as it sought to do here, when Fresh Express surrendered control of the liened funds to Escobar’s attorney. It follows that the trial court erred by sustaining Fresh Express’s demurrer and that the judgment predicated on that ruling must be reversed.”