Category: Daily News

Arguments will be presented to the California Supreme Court next month in the case of an injured worker whose death from a prescription drug overdose was ruled noncompensable by the 4th District Court of Appeal in December 2013. The high court is scheduled to hear arguments in South Coast Framing v. Workers’ Compensation Appeals Board on March 3 in San Francisco. The court agreed last March to consider the case.

Brandon Clark, a South Coast employee, suffered back, head, neck and chest injuries when he fell off a roof while working for South Coast in 2008. His workers comp doctor prescribed an antidepressant, Vicodin and Neurontin, a drug used to treat neuropathic pain. Mr. Clark also was prescribed Xanax and Ambien by his personal physician in January 2009 for anxiety and sleep problems. He died the following July allegedly from the combined effects of the antidepressant, Neurontin, Xanax, Ambien and associated early pneumonia.

Mr. Clark’s wife and children filed for workers comp death benefits, contending that his death was a result of his work injury and related medications. She supported her claim with the report of Dr. Bressler who concluded that “[Brandon’s] death was secondary to an accidental overdose.” In reaching this conclusion, Dr. Bressler stated, “[t]he specific combination of medicines [Brandon] was on, which included Xanax, Ambien, Flexeril, Neurontin, amitriptyline, and hydrocodone, all separately and in combination had the capacity to induce respiratory depression, and even respiratory arrest.” Thus there was a mixed cause of both industrial and non-industrially prescribed medications. However the agreed medical examiner, Dr. Thomas C. Bruff, had a more detailed analysis of the interaction of the industrial and non-industrial drugs and came to the opposite conclusion.

A workers’ compensation judge concluded that Brandon Clark died as a result of medications he took after suffering an industrial injury. South Coast and its insurance carrier, Redwood Fire and Casualty Company administered by Berkshire Hathaway Homestate Companies petitioned for writ of review after the Workers’ Compensation Appeals Board denied reconsideration of the WCJ’s decision in favor of Brandon’s wife and children.

The Court of Appeal in the unpublished case of South Coast Framing v WCAB (Clark) concluded that the Board erred in denying reconsideration because the WCJ’s decision was not supported by substantial evidence. A physician’s report and testimony must demonstrate his opinion is based on “reasonable medical probability.”

The dispute will now be resolved by the California Supreme Court after oral arguments are heard next month.

Medications such as Abilify and Actiq are being used off-label to treat injured workers, prompting the workers comp sector to focus on curbing inappropriate prescribing that may be pricey and dangerous. Research shows that about one in five of all prescriptions are written for off-label use, or uses outside those approved by the U.S. Food and Drug Administration. According to the article in Business Insurance, experts say the practice has popped up in workers comp with drugs such as Abilify, an anti-psychotic that’s FDA-approved as an add-on treatment for adults with depression, but inappropriately used as a lone treatment of injured workers’ depression or anxiety.

“We’re starting to see more Abilify being added to problematic claims, and Abilify really doesn’t have a place in work comp,” said Brian Carpenter, Atlanta-based senior vice president of pharmacy product development and clinical management for Healthcare Solutions. “It’s a very expensive medication.” About $6.5 billion was spent on Abilify in the United States in 2013, according to the IMS Institute for Healthcare Informatics. “Certainly because of the cost and the fact that … we believe there are other drugs that are therapeutically effective to do what it does, we would certainly try to have a conversation with a physician to not use the drug to treat an injured worker”, said Rita Wilson, Delray Beach, Florida-based CEO of Tower MSA Partners L.L.C., a Medicare secondary payer compliance company.

The impact of off-label drugs is difficult to quantify in workers comp since it’s not always clear why a medication is prescribed, said Brigette Nelson, Cave Creek, Arizona-based senior vice president of workers compensation clinical management at St. Louis-based pharmacy benefit manager Express Scripts Inc. However, sources said off-label use in comp is seen primarily in pain management.

Opioids make up a large percentage of off-label prescriptions, said Michael Gavin, Duluth, Georgia-based president of medical cost management company PRIUM. “It has serious implications for injured worker health because the FDA is signaling to the physician community that these drugs should be used in really limited circumstances, and yet we see our work comp payer community spending $1.5 billion a year on them,” Mr. Gavin said. It’s important for PBMs and third-party administrators to be familiar with medications commonly prescribed off-label so they can appropriately flag and monitor claims, sources said.

State rules also can come into play. For example, a recent update proposed for the California Medical Treatment Utilization Schedule could limit off-label use by requiring physicians to prove with a study or alternate guideline that that treatment contrary to the state’s schedule is appropriate. Off-label prescribing becomes a problem when physicians prescribe potentially dangerous and expensive drugs, such as “Actiq instead of Vicodin or Norco,” said David Cooper, director of orthopedic surgery at The Knee Center in Wilkes-Barre, Pennsylvania. Actiq, which is FDA-approved for breakthrough, chronic cancer pain, is a drug that sources agree has no place in workers comp. “We’ve seen (Actiq) used in workers compensation for nonspecific low back pain,” Mr. Gavin said. “That’s incredibly damaging. That’s a very powerful narcotic.” He said use of Actiq has declined in recent years as “we’ve gotten smarter as a payer community.”

One of the most important things a TPA can do is partner with the right doctors to avoid off-labeling from the onset, said Debbie Michel, Chicago-based president of TPA Helmsman Management Services L.L.C. And in states that allow it, conducting utilization reviews is considered a best practice to decide whether off-label use is appropriate, experts said.

Anthem is the nation’s second-largest health insurer, operating Blue Cross and Blue Shield plans in 14 states including California. Company officials report that Anthem was the target of a very sophisticated external cyber attack. These attackers gained unauthorized access to Anthem’s IT system and have obtained personal information from up to 80 million current and former members such as their names, birthdays, medical IDs/social security numbers, street addresses, email addresses and employment information, including income data. No information is available about the status of any information in its database arising out of Workers’ Compensation MPN services.

Anthem officials became aware of the breach when one of their senior administrators noticed someone was using his identity to request information from the database. Once the attack was discovered, Anthem said it immediately made every effort to close the security vulnerability, contacted the FBI and began fully cooperating with their investigation. Anthem has also retained Mandiant, one of the world’s leading cybersecurity firms, to evaluate our systems and identify solutions based on the evolving landscape.

Anthem will individually notify current and former members whose information has been accessed. It will provide credit monitoring and identity protection services free of charge. Anthem created a dedicated website – www.AnthemFacts.com – where members can access information such as frequent questions and answers. It has also established a dedicated toll-free number that both current and former members can call if they have questions related to this incident. That number is: 1-877-263-7995.

The hackers are thought to have infiltrated Anthem’s networks by using a sophisticated malicious software program that gave them access to the login credential of an Anthem employee. “This is one of the worst breaches I have ever seen,” said Paul Stephens, director of policy and advocacy for the Privacy Rights Clearinghouse, a nonprofit consumer education and advocacy group. “These people knew what they were doing and recognized there was a treasure trove here, and I think they are going to use it to engage in very sophisticated kinds of identity theft.”

The decision by Anthem to bring in the Federal Bureau of Investigation and go public with the breach is the kind of move that law enforcement officials have been encouraging for the last several months. F.B.I. officials have appeared at a number of industry conferences urging corporate executives to promptly report breaches and, when possible, share information about the breach with competitors.

The cyberattack points to the vulnerability of health care companies, which security specialists say are behind other industries in protecting sensitive personal information. Experts said the information was vulnerable because Anthem did not take steps, like protecting the data in its computers though encryption, in the same way it protected medical information that was sent or shared outside of the database. While the health industry has not previously experienced the large-scale breaches that have plagued retailers like Target and Home Depot, there have been smaller attacks. Statistics maintained by the federal government’s Office for Civil Rights at the Department of Human Services say there have been 740 major health care breaches affecting 29 million people over the last five years. But the information that health providers maintain about consumers tended to be more valuable on the black market than the credit card information that is often stolen from on a retailer.

Katherine Keefe, global focus group leader for breach response services at Beazley, which underwrites cyberliability policies, said “The value to a criminal of having a full set of medical information on a person can go for $40 to $50 on the street. By contrast, a credit card number is often worth $4 or $5,” The information can be used to impersonate hacking victims to obtain medical care or to purchase expensive medical equipment such as motorized wheelchairs. It often takes health-care providers longer to detect this type of fraud than credit card companies or banks, which are constantly looking for inconsistencies that could signal a problem. That also means it can be more time consuming and costly for victims to correct, experts say. Criminal attacks on health-care organizations increased 100 percent between 2009 and 2013, according to a report on patient privacy by think tank the Ponemon Institute. About 40 percent of health organizations reported facing criminal cyberattacks in 2013, the report said.

In the summer of 2003, Wilfredo Velasquez started working at Gold Coast, a company that made food flavorings.Velasquez moved diacetyl, in both closed and open bags and containers, throughout the company’s facility. He breathed ambient diacetyl particles in the air while using a sprayer to mix diacetyl into batches of liquid and dry flavorings, and while hand pouring the compound into mixes. Centrome, Inc. dba Advanced Biotech supplied roughly 80 percent of the diacetyl that Gold Coast used in its facility. Advanced did not manufacture the diacetyl. Advanced purchased the compound from suppliers then distributed it to customers like Gold Coast.

Advanced attached material safety data sheets (MSDS’s) to the containers of diacetyl it distributed to its customers. The MSDS’s warned that diacetyl was “harmful by inhalation,” but did not include specific warnings about the risks of any particular diseases from exposure to the compound. At trial, it was undisputed that Advanced’s warnings were consistent with flavorings industry practices at the time that Velasquez was working at Gold Coast. The California Division of Occupational Safety and Health did not issue exposure limits for diacetyl until 2010, more than four years after Velasquez stopped working at Gold Coast. There were no federal regulations governing exposure limits for diacetyl while Velasquez worked at Gold Coast. Even by the time of trial of Velasquez’s current case in 2012, the Federal Drug Administration continued to classify diacetyl as “Generally Regarded as Safe.”

Velasquez developed symptoms including shortness of breath. He was first diagnosed with bronchiolitis obliterans, a rare form of lung disease which is usually progressive and fatal, in December 2006. He received workers’ compensation benefits and claims to have a need for a lung transplant in the future.

In April 2007 Velasquez filed a civil complaint for personal injuries against several manufacturers and distributors of chemical compounds used to make food flavorings. Velasquez alleged his lung disease was caused by workplace exposure to a chemical compound, diacetyl, that was distributed by defendant and respondent Centrome, Inc. dba Advanced Biotech.

In the months leading up to trial, Velasquez filed a motion in limine to preclude Advanced (and, at the time, a number of other defendants) from presenting any evidence or making any comment about his citizenship or immigration status, or showing that he had used falsified information or documents when applying for employment. The defendants opposed the motion on the theory that Velasquez claimed to be a lung transplant candidate, and his candidacy would be precluded depending on his immigration status. The Court resolved this dispute after hearing testimony from UCLA physicians that immigration status can be discussed in the decision making process for lung transplant candidacy by denying the motion stating “I’m going to deny your in limine motion to keep it out. That’s my ruling.” In making its ruling, the court acknowledged that evidence of immigration status was “highly, highly prejudicial,” but that its probative value in Velasquez’s case was “definitely more than a little.” A complicated jury voir dire process occurred with the Court interjecting comments hoping to mitigate prejudice caused by information about his immigration status. Some jurors and alternate jurors admitted the information would have some influence on them and they were dismissed. However, after the ruling and during the trial the UCLA physician changed his testimony indicating that there was a new policy and it would not consider residency and immigration status when making decisions on transplant approvals. At this point it was too late, and the jury had already been involved in the immigration dispute. Motions for mistrial were overruled.

Trial was dominated by expert testimony. Nearly a dozen medical doctors testified on the subject of Velasquez’s medical history, his current medical condition, his prognosis, his medical treatment to date, and his need for future medical treatment, including his need for a lung transplant. The the jury returned a special verdict that supported the trial court granting Advanced’s motion for nonsuit on Velasquez’s common law negligence theory. Velasquez appealed, and the Court of Appeal reversed in the published case of Velasquez v Centrome, Inc. dba Advanced Biotech.

The Court of Appeal agreed with Velasquez that when an undocumented immigrant plaintiff files a personal injury action, but does not claim damages for lost earnings or earnings capacity, evidence of his or her immigration status is irrelevant. “Immigration status has no tendency in reason to prove or disprove any fact material to the issue of liability; it does not demonstrate whether the defendant committed a harm-causing act. Immigration status has no tendency in reason to prove or disprove any fact material to the determination of past special damages, i.e., what are the plaintiff’s past medical bills up to the date of trial. Nor is evidence of immigration status relevant to general damages, as it does not prove or disprove what is the reasonable amount of money to compensate the plaintiff for his or her past and future pain and suffering. Further, immigration status alone has no tendency in reason to prove or disprove any fact material to the issue of a party’s credibility.” The trial court abused its discretion in determining Velasquez’s alienage status was admissible under Evidence Code section 352, and the jury should not have been informed of it. California and in multiple other jurisdictions have recognized the strong danger of prejudice attendant with the disclosure of a party’s status as an undocumented immigrant. The trial court should have declared a mistrial.

Selective publication is the legal process which a judge or justices of a court decide whether a decision is to be or not published in an official reporter. Unpublished opinions, are those decisions of courts that are not available for citation as precedent. Every day in California, lawyers engaging in legal research come across that perfect case that makes that key point – only to realize that the case is “unpublished.” California Rules of Court 8.1115(a) provides that any decision that is not certified for publication (or not ordered published) “must not be cited or relied on by a court or a party in any other action.” However the WCAB does not have a similar Rule. Nonetheless, published opinions are clearly controlling law.

The Court of Appeal decision last month in Ogden Entertainment Services v. WCAB answers the question of when is an expedited hearing too expedited. It also makes clear the mandate that due process of law protections are alive and well at the WCAB. The case was initially unpublished. However, a petition by Tim Morgan Esq., at Floyd, Skeren and Kelly to have the case published was just granted, and the case is now fully citable law in all California courts.

Kristian Von Ritzhoff sustained injuries while working as a banquet server in 1996. Orthopedic injuries were admitted and psychiatric injury denied. The PTP found Ritzhoff’s right ankle permanent and stationary as of October 25, 2005. Save for its significance as the origin of Ritzhoff’s psychiatric injuries, the orthopedic injury dropped out of consideration thereafter.

Ritzhoff has been representing himself since 1998. At the expedited hearing of May 18, 2006 the defendant began to cross-examine him. However, the WCJ terminated cross-examination over the defendant’s objection and even though the defendant had not finished because of alleged time constraints arising from the expedited nature of the hearing. The WCJ also noted that the videotape the defendant sought to have admitted was “more appropriate for later cross-examination (of a doctor and/or applicant as to accuracy of his history) rather than at this stage of the proceedings.” Nonetheless the WCJ found Ritzhoff temporarily totally disabled from a psychiatric injury based upon a 1999 medical report. The WCAB denied reconsideration of this order.

There now followed three hearings. The first two focused on whether Ritzhoff was psychiatrically permanent and stationary and thus no longer entitled to TTD. The third hearing ended with the finding that Ritzhoff was 100% disabled. Ritzhoff refused to be cross-examined at all three of these hearings.

The Court of Appeal reversed and remanded in the now published case. “For two centuries past, the policy of the Anglo-American system of Evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.” “We address in this case therefore nothing less than one of the fundamental guarantees of a fair trial or, as in this case, a fair hearing, for there is no doubt that the right of cross-examination is guaranteed to the parties in workers’ compensation proceedings.” “Give what the purposes of cross-examination are, we must correct the misperception shared by the WCJ and the appeals board that, as a layperson, Ritzhoff had nothing to add as a witness.” “The importance of cross-examination as a means of testing and attacking the credibility of a witness is undiminished in the modern era.”

Indeed, the Court of Appeal unraveled the case to a point earlier than the last hearing by stating “The appeals board’s view that the defense should have sought review of its decision regarding cross-examination following the first and second hearings ignores the plain fact these were not final decisions of the appeals board and thus were not reviewable in this court under the aegis of a writ of review.”