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Category: Daily News

Postoperative Telehealth Visits Found Effective in VA Study

People may happily, and safely, forgo in-person doctors’ visits after surgery by opting instead for talking with their surgeons by phone or video, suggests a small study of U.S. veterans. According to the summary in Reuters Health, most patients preferred the virtual visits and the doctors didn’t miss any infections that popped up after surgery, the researchers report in JAMA Surgery.

“These kinds of methods are really important in the climate we’re in now,” said lead author Dr. Michael Vella, of Vanderbilt University Medical Center in Nashville. “So I think anything you can do to save money, see more patients and improve access to care is really important.” There is interest in so-called telehealth to increase access to healthcare while also decreasing the costs associated with traveling to office visits, Vella and his colleagues write.

Past research has found that telehealth visits may be useful in the treatment of chronic conditions and after surgery, but less is known about patients preferences for these types of visits, they add.

For the new study, the study team evaluated data collected over several months in 2014 from 23 veterans, all but one of them men, who were seen three times after a simple operation that would require only a night or so in the hospital. One visit was via video, the second was via telephone and the third was an in-person office visit. The researchers found that no post-operation infections were missed during the video or telephone visits. “The veterans were very good at describing their wounds,” Vella said. “There was one patient who thought they were having problems, we brought them into clinic and there was an infection.”

Overall, 69 percent of the participants said they preferred a telehealth visit over the traditional in-office visit. Those who preferred the telehealth visit tended to live farther away from the hospital than those who would rather come into the office. “I think (the study) challenges the paradigm that we need to see all patients back for visits,” Vella said.

He cautioned that the study was small, and they can’t say telehealth visits won’t miss problems. The study also can’t assess how telehealth visits would work for patients who have undergone more complex surgeries.

Safety Shoe Warranty Violates Comp Law

Chipotle Mexican Grill implemented a Shoes For Crews program in which employees were permitted to buy shoes directly from Shoes For Crews or through a payroll deduction. This is considered a safety program or good safety practice by workers’ compensation carriers. Based on its employees wearing SFC shoes, Chipotle obtained a reduction in its workers’ compensation premiums. Shoes For Crews also extended warranties to Chipotle to cover certain medical expenses in slip and fall related workers’ compensation cases. At one point, Shoes For Crews paid $25,000 to offset the cost of medical bills arising from injuries sustained by Chipotle employees.

Ashante Lewings filed a class action against her employer claiming this program violated a statute which prohibits employers from receiving a contribution from an employee, directly or indirectly, to cover any part of the cost of workers’ compensation.

Chipotle demurred arguing that labor code sections 3751 and 3752 do not prohibit safe workplace programs that are voluntary, nor do they prohibit third party warranty reimbursements. The trial court sustained the demurrer without leave to amend and the class action was dismissed. The court of appeal reversed in the unpublished case of Lewings v. Chipotle Mexican Grill, Inc.

The primary issue is whether Chipotle violated Labor Code section 3751, a statute which prohibits employers from receiving a contribution from an employee, directly or indirectly, to cover any part of the cost of workers’ compensation. The court noted that “Any time Chipotle is self-insured, the warranties directly cover the cost of compensation by paying medical expenses. Any time Chipotle has workers’ compensation insurance, the warranties indirectly cover the cost of compensation by defraying increases in insurance premiums and replacing lost dividends.”

When the employees purchased SFC shoes, they indirectly contributed to the cost of compensation because their purchases resulted in Chipotle receiving warranties from Shoes For Crews designed to offset workers’ compensation medical expenses.

Companies Convert Old Generic Meds to High Priced “Specialty Drugs”

The reputation of the biopharmaceutical industry continues to be battered by claims of illegal detailing of drugs or questionable sales and marketing practices. And now a new twist from the hands of Martin Shkreli, the CEO of Turing Pharmaceuticals and a former hedge fund manager. He raised the price of a 60 year old generic drug Daraprim acquired by his company in August from $13.50 to $750 a tablet, overnight.

According to the report in Forbes, Shkreli’s actions are being viewed as typical drug company behavior and yet another example of the industry’s price gouging. Daraprim was originally discovered, developed and manufactured by GlaxoSmithKline (GSK). The Daraprim patent expired decades ago and the drug is now generic, thus allowing others to make it.

However, it is a small product and no real competition has arisen. In 2010, GSK sold the marketing rights for Daraprim to CorePharma. Sales of Daraprim were less than $1 million in 2010 based on a price of about $1/pill. CorePharma raised the price to $13.50, which itself is surprising. But given the importance of the drug and the modest number of prescriptions per year (about 12,700), there was little complaint. However, a series of deals brought Daraprim to Turing Pharmaceuticals and the price was immediately increased to $750 a pill.

Turing’s price increase is not an isolated example. Although some price increases have been caused by shortages, others have resulted from a business strategy of buying old neglected drugs and turning them into high-priced “specialty drugs.”

Cycloserine, a drug used to treat dangerous multidrug-resistant tuberculosis, was just increased in price to $10,800 for 30 pills from $500 after its acquisition by Rodelis Therapeutics. Scott Spencer, general manager of Rodelis, said the company needed to invest to make sure the supply of the drug remained reliable. He said the company provided the drug free to certain needy patients.

Valeant Pharmaceuticals acquired two heart drugs, Isuprel and Nitropress, from Marathon Pharmaceuticals and promptly raised their prices by 525 percent and 212 percent respectively. Marathon had acquired the drugs from another company in 2013 and had quintupled their prices. Another drug, Doxycycline, an antibiotic, went from $20 a bottle in October 2013 to $1,849 by April 2014.

This is not the first time the 32-year-old Shkreli has been the center of controversy. In 2011, Mr. Shkreli started another company, Retrophin, which also acquired old neglected drugs and sharply raised their prices. Retrophin’s board fired Mr. Shkreli a year ago. Last month, it filed a complaint in Federal District Court in Manhattan, accusing him of using Retrophin as a personal piggy bank to pay back angry investors in his hedge fund. Shkreli has denied the accusations. He has filed for arbitration against his old company, which he says owes him at least $25 million in severance.

Exclusive Remedy Bars Claim for Asbestos Taken Home

Lario Melendrez worked for Ameron International Corporation in Pasadena for 24 years and was exposed to asbestos while manufacturing pipe products for the company. He died in 2011 of asbestos-related mesothelioma. His wife and children filed a wrongful death lawsuit against Ameron and argued that Mr. Melendrez was exposed to asbestos at work and through waste or scrap pipe that Ameron permitted him to take home for personal projects, such as making flower pots and part of a patio. Ameron argued that workers comp was the exclusive remedy for Mr. Melendrez’s family.

The Superior Court agreed with the employer and granted summary judgment finding that Mr. Melendrez’s death was work-related and the exclusive remedy applied. The family appealed, and the court of appeal sustained the dismissal in the published case of Melendrez v Ameron International Corporation.

The appeals court agreed that although a triable issue of fact exists whether Melendrez’s exposure to asbestos at home arose out of and in the course of his employment with Ameron, that issue is not material to the viability of Ameron’s defense of workers’ compensation exclusivity. “It is undisputed that Melendrez’s exposure to asbestos in his employment with Ameron substantially contributed to his mesothelioma. Therefore, under the contributing cause standard applicable in workers’ compensation law, his mesothelioma is covered by workers’ compensation, and his separate exposure at home does not create a separate injury outside workers’ compensation coverage. Thus, plaintiffs’ lawsuit is barred by workers’ compensation exclusivity.”

The court also upheld an award of $80,719 to be paid by Mr. Melendrez’s family to Ameron for costs and fees as a result of their rejection of a CCP 998 offer to allow judgment in the lower court trial.

3rd DCA Clarifies Burden of Proof for Total Disability Award

In the unpublished case of Hallmark Marketing Corp. v. WCAB and Gannon, Carol Ann Gannon sustained an industrial injury in December 2000 affecting her low back, neck, and bilateral carpal tunnels while working for Hallmark Marketing Corporation. Permanent disability was evaluated using the 1997 disability rating schedule. She has motion segment loss at two lumbar spine levels after two surgical fusions, one in 2004 and the other in 2007 and has a “failed back syndrome with chronic pain.”

The AME reported that Gannon “would be unable to sustain six to eight hours of work every day in a constructive, productive and consistent fashion. [She] would be able to work out of her home [(which actually means, in her home)] probably six to eight hours a day where she would be able to rest and take breaks and ‘spread’ the workday into a longer period. . . . [She] would be able on certain days to probably work between four and six hours a day, but other days not, and therefore I would consider that [she] is probably 100% disabled solely based on her orthopedic condition . . . .”

The WCJ disagreed with the rater’s conclusion that an industrial injury that limits the employee-applicant to working only from home is necessarily 100% permanent disability (termed a “sheltered workshop” or “sheltered workplace” by the DEU rater). The WCJ, instead, applied the following legal standard: An injured employee is 100% permanently disabled if having to work from home is necessitated by limitations that also render the employee unable to compete in the open labor market and awarded total disability. On reconsideration the WCAB did not adopt the WCJ’s legal standard but affirmed the 100% award based on the DEU rationale.

The Court of Appeal reversed finding that the WCJ used the correct standard. “The applicant has the initial burden, under this standard, to show that she can work only from home in work that is not generally available; if the applicant meets this burden, the burden shifts to the employer to establish the applicant’s ability to compete in the open labor market (i.e., to show there is work available that the applicant can perform).”

Grand Jury Indicted Union Official for Kickbacks to Comp Attorney

A federal grand jury indicted 54 year old Oakland resident Daniel Rush for taking illegal payments as a union employee, honest services fraud, attempted extortion, and money laundering. According to the indictment, Rush is alleged to have used his position as a union organizer with the United Food and Commercial Workers (UFCW) to obtain money and other things of value over a five year period.

Rush was an organizing coordinator of the medical cannabis division of the UFCW. The indictment further charges Rush with taking kickbacks from Marc Terbeek, an Oakland workers compensation attorney, in exchange for arranging for the attorney to represent clients in worker’s compensation matters. Rush was an officer and director of an advocacy organization for the working poor. Rush directed the organization’s referral of worker’s compensation clients to the attorney. In exchange, the attorney provided Rush with a credit card on which Rush charged thousands of dollars of personal expenses which ultimately were paid by the attorney.

Rush also is charged with attempted extortion. Rush was a member of the Berkeley Medical Cannabis Commission, which is a commission of the City of Berkeley organized to facilitate the appropriate licensing and regulation of medical marijuana in the city. Rush demanded a well-compensated job from a prospective medical marijuana dispensary in exchange for his influence as a member of the commission.

In addition, the indictment alleges that Rush engaged in a conspiracy to commit money laundering and financial structuring, as well as substantive money laundering. The indictment and FBI agent’s affidavit filed in the case explain that Rush took a loan totaling $600,000 in cash from a person engaged in the marijuana business. Rush and the attorney engaged in a series of structuring transactions designed to obscure the origin of the money. Over the ensuing years, Rush required the attorney to fund interest payments on the loan and, when Rush ultimately was not able to repay the loan, he offered favorable union benefits in exchange for forgiveness of the loan.

The case is being prosecuted by the Special Prosecutions and National Security Unit of the U.S. Attorney’s Office in San Francisco and investigated by the FBI.

Cloud Based Payroll Companies Expanding to Comp Insurance

The San Francisco-based company ZenPayroll has offered a cloud-based system to automate tax calculations and payroll payments. Its web-based services are already used by more than 20,000 small businesses. The company has now changed its name to Gusto, and is competing in the workers’ compensation insurance marketplace. When it was still ZenPayroll, the company’s sights were set on helping the six million US-based small businesses – places like florists, churches, and salons – that have, in the past, done payroll by hand. But the company also announced that it will also be rolling out health benefits and workers’ compensation to these businesses.

Over the past few months, Gusto has quietly tested health benefits and workers’ compensation products. Now, it will offer both services to existing and new accounts, starting in California. That shift will put the San Francisco-based company in head-to-head competition with Zenefits, the powerful online health insurance broker. Traditionally, the two startups have been partners: Zenefits uses payroll data from the likes of ADP and ZenPayroll to manage its plans, but wants to reduce that dependency. As of late June, Zenefits claimed more than 10,000 accounts. Last year, it generated around $20 million in revenue and as of May its valuation was around $4.5 billion. CEO Parker Conrad told Fortune sales could quintuple this year.

So far, Gusto has raised approximately $86.1 million, including a massive $60 million round from Google Capital last April. As a side note, Google Capital just put $32.5 million into another disruptive insurance startup, Oscar Health. There are also plenty of other companies seeking a piece of the action, including those hoping to empower existing insurance brokers with cloud software, such as EaseCentral and Maxwell Health.

WCAB En Banc Extends IMR Appeal Time Limit to 35 Days

Joann Matute claimed cumulative industrial injury to her psyche, fibromyalgia, carpal tunnel syndrome, allergies and rheumatoid arthritis while employed as a teacher for the Los Angeles Unified School District. She was awarded 37% permanent disability and future medical treatment for rheumatoid arthritis, fibromyalgia and psychiatric injuries.

On July 7, 2014, Pamela Stitt, M.D. issued a prescription for 24-hour home health care services. On August 23, 2014, defendant served applicant with a letter finding that the requested services were not medically necessary. On September 4, 2014, applicant filed a request for IMR. On November 6, 2014, Maximus Federal Services, Inc., issued a Final Determination Letter upholding the UR denial. On December 10, 2014, applicant filed an appeal of the IMR determination. December 10 was 34 days after the November 6, 2014 date of the Final Determination Letter.

The WCJ found that a five day extension for service by mail pursuant to Code of Civil Procedure [C.C.P.] section 1013(a) did not apply to applicant’s IMR appeal and issued the Findings and Order dismissing the IMR appeal as untimely. The WCAB in the case of Matute v LAUSD reversed and held that:

(1) The term “mailing” contained in section 4610.6(h) is equivalent to and means “service by mail” and (2) The 30-day period to file a timely appeal from an IMR determination under section 4610.6(h) is extended by five days pursuant to the provisions of section 5316 and C.C.P. section 1013(a).

There is no specific mention of “service” in section 4610.6(h). Thus, the issue presented is whether the “mailing” of the written IMR determination to the employee or employer is equivalent to and means service by mail. WCAB Rule 10957.1(c) specifically mentions “service by mail” as the trigger for responding to an IMR determination. This rule reflects the intended meaning of “mailing” in light of the relevant case law. The 30-day period to file an appeal of an IMR determination pursuant to section 4610.6(h) is extended by five days pursuant to the provisions of section 5316 and C.C.P. section 1013(a).

Cautious Optimism at DWC Drug Formulary Public Hearing

The California Legislature passed A.B. 1124, which would establish an evidence-based closed drug formulary for Workers’ Compensation by July 1, 2017 if signed by the Governor. Notwithstanding this legislation, the DWC has already commenced public hearings on a drug formulary believing that it has authority to adopt one without further legislation.

An article in Business Insurance reports that California insurance experts are optimistic that a new workers compensation prescription drug formulary will help injured workers and reduce comp costs in the state, but the legislation could face hurdles from claimants who need to be weaned from banned drugs or want to continue using them off-label.

The formulary “takes a significant step forward in improving the state workers compensation system as it will assist in injured workers’ medical outcomes, decrease system bureaucracy and provide for savings,” Steve Suchil, Western region assistant vice president of state affairs at the American Insurance Association, said Wednesday in a statement.

Mark Sektnan, president of the Sacramento-based Association of California Insurance Cos., said the proposal could help curb opioid addiction and ensure injured workers receive appropriate medications. “We need to be very careful about ensuring that we provide the correct drug at the right time to that injured worker so they can do what they need to do, which is get back to work,” Mr. Sektnan said.

While California’s formulary has received positive reactions, experts say there also could be some pushback. Mr. Sektnan said California insurance regulators have discussed limiting the off-label use of medications for conditions that aren’t Food and Drug Administration-approved for such drugs. For instance, injured workers would have difficulty getting prescriptions for some powerful opioids that are indicated for treating end-stage cancer pain, Mr. Sektnan said.

The formulary could include a process for claimants who want to continue taking medications for off-label uses. Speakers also cautioned that patients already on medications need a robust and carefully managed transition process – a provision in the bill requires a yet-to-be-determined transition period. However, Mr. Eichler advised against adopting transition rules from the plan Texas implemented in 2011, which used a two-year phase-in for legacy claims. “It doesn’t take two years to wean a patient,” Mr. Eichler said. “My personal recommendation is to go with one year for legacy claims. You need to protect injured workers with the best protocols possible.”

A major concern voiced by several participants during the public meeting was the need to ensure that the formulary is consistent with the state’s medical treatment utilization schedule, which provides guidelines for utilization review, a framework to evaluate and treat injured workers; and information for providers on understanding which evidence-based treatments have been effective.

QME Panel Ordered in Psyche Add-On Case

SB 863 placed limits on the ability to claim permanent disability for psychiatric injury, sleep disorder or sexual disorder, if it is the result of a physical injury. Before the new law, these claims were referred to as AMA Guides “add-on” cases. A recent case may answer questions about the use of a PQME with a specialty in those areas in add-on cases.

Shari Hernandez, a bank teller for Fremont Bank, claims to have sustained a specific injury to her knee, and cumulative trauma injury to her left leg and foot. Both Applications were amended to include claim of injury to psyche, stomach and internal organs.

The parties later decided to utilize Joel Renbaum, M.D., as an orthopedic AME. Applicant petitioned for assignment of an additional panel in psychiatry, and an Order to that effect was issued by a WCJ. It is from this Order that Defendant petitioned for removal.

Defendant relied on Labor Code Section 4660.l(c)(l), which it quotes as follows: “‘there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction or psychiatric disorder, or any combination thereof arising out of a compensable physical injury’ for injuries occurring on or after 1/1/13.” Defendant goes on, “Therefore, a medical legal evaluation in the specialty of psychiatry is inappropriate.”

The WCAB denied removal in the case of Hernandez v. Fremont Bank. The WCJ pointed out that the second sentence of 4660. l(c)(l), states, “Nothing in this section shall limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction, or psychiatric disorder, if any, that are a consequence of an industrial injury.”

The appropriate procedure to resolve a dispute over injury is to utilize the panel Qualified Medical Evaluator mechanism (or agree to an AME). The fact that compensation for a permanent psychiatric impairment is not available to this injured worker does not deprive her of her potential right to medical care or, for that matter, temporary disability indemnity on a psychiatric basis.