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Floyd, Skeren and Kelly 5th Annual Conference – Next Week!

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Just about one week remains before the Floyd, Skeren and Kelly 5th Annual Southern California Employment Law Conference held at the Disneyland Hotel on June 19. Nearly 400 professionals have registered to attended this conference. This year guest speakers include Steve Jones, Deputy Labor Commissioner from the California Department of Industrial Relations, Phoebe Liu, Senior Staff Counsel IV California Department of Fair Employment and Housing, Andrew Schneiderman, Esq., Councilmember, California Department of Fair Employment and Housing and Derek Li, Senior Trial Attorney with the EEOC.

This full day conference that will offer topics on both Employment Laws and Workers’ Compensation. Some of the topics we will cover are:

1) Mastering California Leave Laws: A Closer Look at Disability Related Leave Laws, Interactive Process, and Accommodation
2) The Latest Information on California’s Paid Sick Leave-Ensure Compliance Before July 1, 2015
3) Preventing Work Comp Fraud in the Workplace
4) Identifying the Key Features of a Successful Interactive Process in Work Comp Cases
5) Understanding and Complying With the New California Family Rights Act Regulations in Effect as of July 1, 2015
6) A Work Comp Case Law and Legislative Update
7) Understanding, Preventing and Responding to Sexual Harassment Claims in the Workplace
8) How to Effectively Manage and Defend Work Comp Claims-Advanced Techniques From the Experts
9) Performance, Discipline and Termination-Best Practices for Avoiding Liability with These Vital HR Actions
10) Work Comp Resignations and Compromise and Release-What are the Legal Implications?
12) Is Your Company Committing Costly Wage and Hour Violations-Important Tips for Ensuring Compliance
13) An Update on the UR and IMR Process
14) Seven Habits of Frequently Sued Employers-Avoid These Costly Mistakes
15) Illegal Drug and Substance Abuse in the Workplace: Key Prevention and Response Strategies
16) Common Employer Mistakes Leading to Work Comp Claims
17) Reviewing Medical Reports and Defending Erroneous Ratings

This event will take place at the Disneyland Hotel, 1150 Magic Way in Anaheim. For further information please visit our event website, or call us at (818) 854-3239. You may also register online.

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WCAB Announces Proposed Changes to Rules of Practice

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The Workers’ Compensation Appeals Board plans to reorganize and renumber its Rules of Practice and Procedure (Rules) which are found in the California Code of Regulations, title 8, commencing with section 10300.

The organizational structure initially adopted in 1966 no longer accommodates the number and complexity of rules adopted in the modern era. As a result of several comprehensive reforms of the workers’ compensation system since 1966, the Rules are now 50 pages longer than they were in 1966 and cover multiple new procedures. For example, the Rules now include procedures for issuing sanctions, consolidation of cases, and appealing determinations of the Administrative Director. Because the existing organization does not have a logical or natural place for many of these new rules, it is often difficult to locate a particular rule. An additional consequence of the outdated organization of the rules is unnecessary duplication of rules in different articles and multiple rules covering the same or similar subjects.

With this reorganization, the WCAB plans to accomplish the following:

Organize articles to reflect the order of events in a case.
Eliminate duplicative rules.
Break up complex rules.
Simplify and modernize language of rules for clarity.
Create some room between rules so that additional rules can be added in the future without need for decimals.

In general, the WCAB does not plan to change the substance of the vast majority of rules with this reorganization. However, it will propose substantive changes where a rule does not reflect current practice or when it believes substantive changes are necessary.

Prior to engaging in formal rulemaking under Labor Code sections 5307 and 5307.4, and starting with this notice, the WCAB will periodically post in a forum on its website a group of articles and rules for review and comment. You may go to the forum page to offer your comments.

In the next few months, we will post the remainder of the proposed reorganized rules in two additional forums. After we have completed these forums and we have reviewed and considered the comments received, we will issue an Initial Statement of Reasons and a Notice of Public Hearing together with the complete package of reorganized and revised rules.

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Mueller to Lead 200 Department of Insurance Sworn Peace Officers

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Insurance Commissioner Dave Jones announced that he is appointing George Mueller as Deputy Commissioner of the Enforcement Branch of the California Department of Insurance (CDI). Mueller will lead the department’s law enforcement and criminal investigative functions. The enforcement branch is the largest component of the Department of Insurance and consists of 400 professionals, including over 200 sworn peace officers, who investigate various insurance crimes, including workers’ compensation, auto, homeowner, health, life, annuity, and disability insurance fraud and crimes committed by insurance agents and brokers and those pretending to be agents and brokers.

“I’m pleased to welcome George Mueller to the department,” said Insurance Commissioner Dave Jones. “Chief Mueller brings a wealth of law enforcement leadership experience and expertise that will benefit our enforcement branch, the entire department and the people of California.”

A sworn peace officer, Mueller comes to the department from the Los Angeles County District Attorney’s Office where he most recently served as assistant chief of the Bureau of Investigation. Mueller has served in law enforcement since 1985 where he began his law enforcement career working for the City of Alhambra Police Department as a police officer and then detective.

Appointed assistant chief by the Los Angeles District Attorney in 2009, Mueller also served as a captain, lieutenant, supervising investigator and various other roles in the district attorney’s office. He has extensive experience overseeing complex criminal investigations with emphasis in combating insurance and health care fraud, workers’ compensation fraud, elder abuse and other high impact crimes.

Mueller graduated with honors from the University of Southern California with a bachelor’s degree in public administration and earned his master’s in public administration with a specialization in judicial administration from the same university.

Mueller is also a graduate of the FBI national academy and the Senior Management Institute for Police. He has been a featured instructor and speaker at numerous law enforcement conferences, including the FBI national academy conference and the International Summit on Human Trafficking in Ottawa, Canada. Mueller has also made presentations to representatives from Hong Kong and the Philippines and to the office of the attorney general in Thailand.

Mueller will begin his new assignment with CDI on July 20. Mueller is filling the Deputy Commissioner position left vacant after Eric Weirich retired in December, 2014.

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Medical Supply Operators Convicted After Nine Day Trial

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A Los Angeles-area woman and man who were responsible for more than $1.8 million in fraudulent Medicare billings – almost entirely for medically unnecessary power wheelchairs – have been found guilty of health care fraud.

Queen Anieze-Smith, 53, of Woodland Hills, and Abdul King Garba, 49, of Van Nuys, each were convicted of five counts of health care fraud. The guilty verdicts concluded a nine-day trial before United States District Judge Dolly M. Gee.

Anieze-Smith and Garba, who operated ITC Medical Supply in Van Nuys, were found guilty of submitting fraudulent claims to the Medicare program. The duo billed Medicare for durable medical equipment – mostly power wheelchairs – for beneficiaries who were often recruited off the street, who were mobile and did not need a power wheelchair, and who could not use the power wheelchairs in their homes. As part of their scheme, Anieze-Smith and Garba’s falsified paperwork required by Medicare and sometimes failed to deliver the power wheelchairs altogether. Anieze-Smith and Garba submitted more than $1.8 million in fraudulent claims to Medicare, and they received nearly $900,000 for those claims.

As a result of the guilty verdicts, Anieze-Smith and Garba each face a statutory maximum sentence of 50 years when they are sentenced by Judge Gee this fall.

The investigation into Anieze-Smith and Garba was conducted by the Federal Bureau of Investigation and U.S. Department of Health and Human Services – Office of the Inspector General.

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DWC Revises Proposed QME Regs

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Following a public hearing on May 22, 2015 and a review of submitted comments, the Division of Workers’ Compensation (DWC) has made revisions to the Qualified Medical Evaluator (QME) regulations.

Members of the public are invited to present written comments regarding the proposed modifications to dwcrules@dir.ca.gov until 5 p.m. on Saturday, June 20, 2015.

Proposed revisions include the following requirements and clarifications:

1) Initial represented panel requests postmarked after September 3, 2015 will not be accepted or processed by the Medical Unit for initial represented panel requests only. The last day to mail in panel requests will be September 3, 2015.
2) Effective October 1, 2015, all initial panel requests must be submitted electronically.
3) Parties will have ten days from service of the panel list to strike a doctor.
4) Disputes regarding the validity of panel requests must be resolved by a workers’ compensation judge.
5) Disputes regarding the appropriateness of the specialty designated must be resolved by the Medical Director. Either party may appeal the decision with a workers’ compensation judge. • MAA Anesthesiology is added as a specialty listing.
6) QME Form 105 is amended to make a spelling correction and to indicate that the requesting party must select only one specialty.

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

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EDD Launches New $16 Million Website

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EDD officials showed off the new website at their downtown Sacramento headquarters Thursday. The site, called UI Online, is being launched a year and a half late and has cost more than expected, but aims to greatly reduce the need to call the agency with questions about claims.

“It’s pretty good,” said Amandeep Kaur, one of a small number of Californians who have been given access to it so far. “It’s simple. It’s fast.”

Kaur told KCRA 3 she got laid off in April from a job at Apple in Elk Grove. She tried a few times to reach EDD by phone, waiting roughly 30 minutes for someone to answer, she said. Then, she was given access to the new website, which also comes in a mobile app. Connecting with EDD has been a breeze ever since, Kaur said.

This is the outcome EDD had hoped for in September 2013, when it launched a new software system its employees could use to process unemployment claims. But the version the public would use was delayed after that software launch failed and crippled much of EDD’s work.

“I think it was well worth the wait to finally roll out a system that all our customers can use,” said Sabrina Reed, EDD’s deputy director for unemployment insurance.

The new site, which cost $16 million, lets customers do most of the work of applying for benefits and makes it easier for the agency to contact people online. Of the 15,000 people given access to it so far, only two people have needed help using it, Reed said.

EDD plans to roll out the new site to 100,000 customers at a time, starting this weekend, until all 400,000 people currently receiving benefits have access.

That’s a fraction of the number of people who were collecting benefits during the height of the recession, roughly 1.5 million, according to EDD. That reduction has helped reduce a backlog of claims the agency processes and helped reduce the backlog of calls.

At one time, people may have called as many as 45 times before someone at EDD answered, said the agency’s spokesperson, Loree Levy. Now, that number is down to three times, Levy said.  

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Court Sanctions Injured Worker and/or Lawyer for Frivolous Appeal

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While in the course of his employment, plaintiff Marco Lopez was a passenger in a big rig truck driven by his co-worker. The truck was hit by another vehicle and Lopez was injured as a result.

After the accident Lopez, in propria persona, filed a form complaint for negligence against his employer who filed a demurrer to the complaint on the ground workers’ compensation barred a civil action. Lopez did not oppose the demurrer, and the court sustained it on the basis of the exclusive workers’ compensation remedy. (Lab. Code, § 3706.) The court took judicial notice of plaintiff’s workers’ compensation application in which he admitted the accident occurred during the course and scope of his employment. It granted Lopez “conditional leave to amend” if he could properly allege his employer had no workers’ compensation insurance, thereby excepting the case from the workers’ compensation statutory scheme.

Subsequently, an attorney filed an amended complaint on plaintiff’s behalf, alleging the employer negligently hired the driver and, on information and belief, that the employer was self-insured and had “used that position to deny [p]laintiff medical coverage and needed medical treatment.”

The employer again demurred, The court sustained the demurrer without leave to amend based on the exclusivity of workers’ compensation statutes. The dismissal was sustained by the Court of Appeal in the unpublished case of Lopez v The Fishel Co. The court concluded that there “is no question the court properly sustained the demurrer without leave to amend. Plaintiff alleged he was defendant’s employee and was injured while on the job.”

The court took judicial notice of plaintiff’s workers’ compensation claim form and the compromise and release form showing the claim was settled. With few exceptions, the workers’ compensation statutes provide an exclusive remedy for job-related injuries. Thus, absent an exception, a civil action may not be filed against an employer. In sustaining the demurrer to the original complaint, the court granted plaintiff leave to amend if he could plead such an exception, i.e., that defendant had no workers’ compensation insurance. Plaintiff made no such allegation in the amended complaint.

Plaintiff asserts defendant is self-insured, complaining it refused to authorize over $700,000 for his necessary medical treatment. But the compromise and release order shows the claim was fully settled. Any unhappiness with the result cannot be litigated in this forum. Plaintiff’s argument the settlement did not include this lawsuit has no merit. This action itself is improper and in any event could not be included in a settlement of the workers’ compensation claim.

On the issue of sanctions, the Court noted “there was no valid basis for filing the complaint to begin with, much less the appeal. The workers’ compensation body of law makes clear the statutory scheme is exclusive, absent a narrow set of exceptions.” We are aware sanctions should be awarded only in the most egregious cases. But all of the circumstances convince us this is such a case. In addition to the wholly improper form of the brief, the contents are equally deficient. The brief is confusing and unclear. The case contains no unique issues or complicated facts, nor was there an argument that existing law should be extended, modified, or reversed, as might justify filing this appeal. We do not believe a reasonable person would have thought it proper to file it.

“Sanctions are awarded against plaintiff or against his lawyer or against both. We remand to the trial court to determine against whom the sanctions are to be awarded and the amount of sanctions.” Lopez was represented by the Justice Law Center and Lee H. Durst when he filed the appeal.

In an unrelated case, Durst, a California lawyer for 30 years, was accused in a lawsuit of botching his client’s legal claim against the mortgage company, which foreclosed on her San Juan Capistrano home. In 2001 a jury returned a verdict that said the Santa Ana lawyer was to pay $21 million to the woman who claimed that his faulty advice in business dealings left her destitute. State Bar records show no public record of discipline or of administrative actions against Durst.

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Two Comp Systems Under Constitutional Attack

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Aggressive claimant attorneys have launched constitutional attacks on workers’ compensation reforms in a number of states including California and Florida. The California Court of Appeal has scheduled oral argument in the the case of Frances Stevens v WCAB that challenges the IMR process. Stevens is now set for oral argument on September 30. Another similar constitutional challenge is working its way through the Third District Court of Appeal that recently agreed to hear the case of Ramirez v The State of California Department of Health Care Services.

In Florida, two high-profile workers’ compensation cases still sit on the desk of the Florida Supreme Court – (1) Castellanos v. Next Door Company and (2) Westphal v. City of St. Petersburg – both of which could have a negative impact on the Florida workers’ compensation system. The workers’ compensation system in Florida has continuously come under scrutiny from opponents looking to overhaul the reforms that were put in place in 2003 by Gov. Jeb Bush and the Legislature.

In the Castellanos case the Florida Supreme Court will decide if the 2003 and 2009 Amendments to the Florida attorney fee law are unconstitutional. In 2003, the Legislature amended the law and limited the amount of attorney’s fees. This severely limited the types of cases or claims an attorney could file. The Court will now decide if the law prevents certain cases or claimants the access to courts as allowed under the Constitution. The National Employment Lawyers Association has given its support to a suit asking the Florida Supreme Court to overturn a statutory limitation on prevailing-party attorneys’ fees in workers’ compensation cases, which the group argues violates the separation of powers doctrine and courts’ authority. The formula for calculating attorneys’ fees in a Florida’s workers’ compensation statute awarded the attorney in the Castellanos case $164 in fees for 107 hours of legal work.

In Westphal the Court of Appeal found that the law stipulating a 104-week limit on temporary benefits was unjust since it puts injured workers like Westphal in a no-win situation of being unable to receive temporary benefits while also not being eligible for permanent benefits. The appeals court concluded that the Florida statue that limited an injured worker to no more than 104 weeks of temporary disability benefits even when he is totally disabled was unconstitutional. Striking down the 1994 amendment to Florida’s workers’ compensation law that established the 104-week limit for temporary disability, the court re-established the previously existing 260-week limit. After rehearing the court re-interpreted the law to mean workers could apply for and receive permanent benefits at the end of the 104-week period because they are “deemed to be at maximum medical improvement as a matter of law,” even if they could one day return to work. The Florida Supreme Court decided to hear the case,

According to the Florida Division of Workers’ Compensation, the running list of reforms in 2003 included making changes to “Permanent Total Disability, Permanent Total Supplement, Permanent Partial Benefits, Practice Parameters and Protocols mandatory in medical care, changes to Independent Medical Examinations, Attorney Fee Award structure, Compliance, Exemptions, elimination of Supplemental Benefits,” among others.The slew of changes to the system focused on one important goal: getting an injured worker back to work, and doing so by weeding out fraud in the no-fault system. The focus wasn’t on making the insurers, medical field or attorneys happy, it was on the employer and the employee.

Business groups credit the Florida reforms for helping drive down insurance rates (down more than 50 percent) and welcoming significant cost savings that allow for the purchase of better policies and coverage for employees. Insurers credit the Florida reforms for opening up the marketplace and creating a healthy and competitive environment. The medical community credits the Florida reforms for adequate medical reimbursement and access to care. But what you won’t hear is trial lawyers crediting this “no-fault” system for much of anything.

Stakeholders in both California and Florida are closely watching these cases which should be decided in the coming months.

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Compared to Other Countries – Americans Have More Pain Despite More Pills

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New research presented at this year’s Euroanaesthesia conference in Berlin shows that American patients undergoing orthopaedic surgery receive more treatments for pain and that their experience of pain differs in some aspects to orthopaedic patients internationally. The study is by Drs Winfried Meissner and Ruth Zaslansky, University Hospital Jena, Germany, and Dr C. Richard Chapman Utah, Pain Research Center, Salt Lake City, USA. All researchers are part of the international PAIN OUT research group.

Poorly controlled pain after surgery is a major problem internationally despite efforts to improve it. American hospitals regularly assess pain because it is a requirement for accreditation. Regular pain assessment is regarded as a cornerstone for good pain management as it allows gauging of a patient’s needs for treatment. Prior to this study, the research team believed that because pain assessment is an accreditation requirement in the USA, there would be meaningfully lower pain reports on the first day after surgery in USA patients compared with other countries, where pain measurement is not uniformly an accreditation requirement.

Using the PAIN-OUT international acute pain registry to examine perioperative pain control in a large group of patients undergoing different orthopaedic surgical procedures, the authors compared patient reported outcomes in a pooled patient sample from four American (n= 1011) (different regions of the US) versus 45 International hospitals (INT) hospitals (n = 28,510). The international hospitals involved in the study were based in Belgium, France, Germany, Italy, Spain, Sweden, Switzerland, Moldovia, Romania, Malaysia, Ukraine, Serbia, Israel and the UK.

The study found that American patients, contrary to prediction, had higher mean worst pain scores than INT patients (7.5 on a standard 11 point pain measurement scale versus 5.2). American patients also reported that they felt ‘greater participation in decisions about pain treatment’ and that the pain had a more severe effect on their level of anxiety and helplessness. Yet, there were no differences in other outcomes, such as the time patients reported spending in severe pain on the first day after surgery or in the extent of relief provided by pain treatments. Outcomes were measured using standard rating scales employed in clinical pain studies.

These findings were surprising and so the authors did further analyses to check pain management practices provided to American patients as compared with INT patients. They found that American patients were actually receiving more opioid medication in the different phases of surgery – before hospitalization, just before surgery and during the first day after surgery. They also received more regional analgesia after surgery. INT patients received more non-opioid medications in some phases of treatment.

Since high amounts of opioids can sensitize patients to nociception (meaning they experience worse pain), the authors then checked to see if American patients receiving the lowest opioid doses also experienced more pain. They found that the 25% of USA patients receiving the lowest doses of opioids had a higher worse pain score (6.62) than the 25% of INT patients receiving the lowest doses of opioids (4.93). This indicates that sensitization by opioids is not necessarily the reason for the observed differences.

The authors say: “The higher mean worst pain score in USA patients on the first day after orthopedic surgery does not have a simple explanation. USA patients receive more pain medication than international patients and yet report worse pain. This merits further investigation.”

The authors conclude: “The findings of this study are puzzling as American patients were treated according to current clinical practice guidelines to a greater extent compared to INT patients. Their pain is regularly assessed; they received more opioids and regional analgesia. Are the differences cultural? Perhaps pain is measured mechanistically and this in itself is insufficient in procuring good management of pain? Could frequent pain measurement draw patient’s attention to the pain and intensify the experience? Maybe opioids sensitize some aspects of the post-surgical experience of pain? Further research is needed to understand the findings.”

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CDC Says Antibiotic Resistance Single Most Important Health Threat

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The White House Forum on Antibiotic Stewardship brought together some 150 representatives from food companies, retailers, drugmakers, farmers, medical societies and others involved in human and animal health to discuss limiting the overuse of antibiotics in livestock, animal feed and humans.

The Forum builds on a number of steps the Administration has taken to combat antibiotic resistance. In September 2014, President Obama signed Executive Order 13676 prioritizing Federal efforts to combat the rise in antibiotic-resistant bacteria. The Administration also issued the National Strategy on Combating Antibiotic-Resistant Bacteria, and the President’s Council of Advisors on Science and Technology released a report with recommendations to address the crisis of the proliferation of antibiotic-resistant bacterial infections. In March 2015, the Administration released the National Action Plan for Combating Antibiotic-Resistant Bacteria, a comprehensive plan that identifies critical actions for key Federal departments and agencies to enhance diagnosis and treatment and limit the spread of antibiotic-resistant bacteria.

The Centers for Disease Control and Prevention estimates that drug-resistant bacteria, which stop responding to the medicines designed to kill them, cause 2 million illnesses and about 23,000 deaths each year in the United States alone. CDC Director Thomas Frieden said antibiotic resistance might be the single most important infectious disease threat today. “If we lose antibiotics, the medicine chest will be empty and it will not only undermine our ability to treat routine infections, but it will undermine much of modern medicine,” Frieden said on a conference call with reporters to announce the White House Forum. “We risk turning back the clock to a world where simple infections can be fatal just as they were a century ago.”

Among the topics under discussion will be developing guidelines and recommendations to control the overuse of antibiotics in hospitals and curtail their use in food animals.

Ahead of the meeting, President Barack Obama signed a memorandum directing Federal departments and agencies to create a preference for meat and poultry produced according to responsible antibiotic-use. The Presidential Food Service is also committing to serving meats and poultry that have not been treated with hormones or antibiotics. Separately, the Food and Drug Administration (FDA) will announce that it has finalized changes to the Veterinary Feed Directive (VFD) regulation, an important piece of FDA’s overall strategy to promote the judicious use of medically important antibiotics in food-producing animals as it facilitates bringing the feed-use of such antibiotics under the oversight of licensed veterinarians.

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