Category: Daily News

Eight former NFL players – Richard Dent, Jim McMahon, Jeremy Newberry, Roy Green, J.D. Hill, Keith Van Horne, Ron Stone, and Ron Pritchard—filed a class-action lawsuit alleging that the NFL supplied them with illegally prescribed painkillers throughout their careers, which led to medical complications such as addiction later in life.

Specifically, the players are alleging:

1. The NFL illegally and unethically supplied players serious pain medications, including addictive opioids, and NSAIDs such as torodol.
2. The NFL did so for financial gain, in order to keep them in competition rather than allowing them to rest and heal.
3. The NFL “fraudulently concealed” the dangerous side effects of the drugs from players.
4. The illegal prescription of these painkillers has led to dangerous medical conditions later in life, including painkiller addiction, stage 3 renal failure and high blood pressure.

More than 500 other former players have signed on to the lawsuit, which was filed in U.S. District Court in San Francisco, according to lawyers representing the former athletes. They are looking to make the case a class action lawsuit.

The full complaint outlines how plaintiff after plaintiff allegedly went through the same ordeal: illegal prescription of painkillers, deceit about both the injuries and the side effects of the drugs, and subsequent medical damage. Some excerpts include:

“Named Plaintiff Jeremy Newberry received hundreds of Toradol injections over the course of his career and for many games, would receive as many as five or six injections of other medications during the course of a game. He also would receive Vicodin before, during and after games to numb pain and often during a game would simply ask a trainer for medications, which would be provided without record as to who was receiving what.”

“While playing in the NFL, Mr. Hill received hundreds, if not thousands, of pills from trainers and doctors, including but not limited to NSAIDs, Codeine, Valium and Librium. No one from the NFL ever talked to him about the side effects of the medications he was being given or cocktailing. He left the League addicted to painkillers, which he was forced to purchase on the streets to deal with his football-related pain, a path that led him to other street medications. He eventually became homeless and was in and out of 15 drug treatment centers for a period of over 20 years until overcoming his NFL-sponsored drug addiction.”

“Mr. Green, who received hundreds of NSAIDs (which can cause kidney damage) from NFL doctors and trainers, had tests performed on him while he played in the NFL that showed he had high creatinine levels, indicative of a limitation on his kidney function. No one from the NFL ever told him of those findings. In November 2012, he had a kidney transplant.”

This is the second class-action lawsuit filed against the NFL by former players. In August 2013, the league agreed to a $765 million settlement with former players who alleged the league lied to players about the physical danger of concussions, which created long-term disabilities for the players that were not covered by league insurance.

In 2005, Warren Brower sustained an industrial injury to his low back, left knee, and psyche while employed as an ironworker foreman,. The WCJ found that Brower’s injury caused temporary total disability from December 20, 2005 through October 6, 2011 and caused permanent total disability (100%). Although under Labor Code section 4656(c)(1)2 applicant’s entitlement to temporary total disability indemnity payments ceased on December 20, 2007 (i.e., after 104 weeks of payment), the WCJ awarded permanent total disability indemnity commencing October 6, 2011, which was when applicant became permanent and stationary. Accordingly, the WCJ’s award resulted in a nearly four year gap between the last payment of temporary total disability indemnity and the first payment of permanent total disability indemnity.

Applicant filed a petition for reconsideration contending that his permanent total disability payments should have commenced as of December 21, 2007 and not October 6, 2011, arguing that pursuant to section 4650(b), permanent total disability payments should commence on the day after the last payment of temporary total disability. Applicant also contends he is entitled to annual cost of living adjustments (COLAs) commencing on January 1, 2008 pursuant to section 4659.

Based on a review of the relevant statutes, regulations, and case law, the WCAB concluded in the en banc decision of Brower v SCIF that

(1) When a defendant stops paying temporary disability indemnity pursuant to LC 4656(c) before an injured worker is determined to be permanent and stationary , the defendant shall commence paying permanent disability indemnity based on a reasonable estimate of the injured worker’s level of PD.
(2) When an injured worker who is receiving PPD payments pursuant to LC 4650(b)(1) becomes permanent and stationary and is determined to be permanently totally disabled, the defendant shall pay PTD indemnity retroactive to the date its statutory obligation to pay temporary disability indemnity terminated.
(3) COLAs begin on the first day in January after an injured worker becomes entitled to receive permanent disability indemnity pursuant to LC 4650(b)(1) or (b)(2).

Effective January 1, 2013, the Legislature amended section 4650(b) in SB 863 to clarify that an employer is not required to commence permanent disability indemnity after the last payment of temporary disability if the employee has returned to work or been offered work at certain wage thresholds. If the employee is eventually awarded permanent disability, “the amount then due shall be calculated from the last date for which temporary disability indemnity was paid, or the date the employee’s disability became permanent and stationary, whichever is earlier.”

Prior to enacting SB 899, the Legislature amended section 4659 to provide that, for injuries occurring on or after January 1, 2003, permanent total disability indemnity payments are increased annually commencing January 1, 2004 in an amount equal to the percentage increase in the state average weekly wage. Prior to the passage of SB 899, the injured worker’s entitlement to temporary disability indemnity terminated when the injured worker either became permanent and stationary or improved sufficiently to return to work. Historically, permanent disability benefits were not payable until the employee had reached permanent and stationary status. SB 899 amended section 4656(c) [now, § 4656(c)(1)] to provide for a 104-week cap on temporary disability. Thus, injured workers like Mr. Brower could remain temporarily disabled after receiving 104 weeks of temporary disability payments and yet not be entitled to collect temporary disability indemnity. Concurrently, the Legislature also amended section 4650(b) [now,§ 4650(b)(1)] to require that permanent disability commence “[w]hen the last payment of temporary disability indemnity has been made pursuant to subdivision (c) of Section 4656.” As amended by SB 899, section 4650 requires a defendant to pay permanent disability indemnity to an applicant who may be temporarily disabled.

Lieutenant Seth Patrick Lantz, a 33-year-old correctional officer at Pleasant Valley State Prison in Coalinga, California, was killed in an automobile accident at 6:20 a.m. on Saturday, October 2, 2010 on his way home from work. He lived in the Bakersfield area and commuted to the prison in his own vehicle. The one-way commute was over 85 miles.

Lantz regularly worked 40 hours per week and had Sundays and Mondays as his regular days off. But, on the day of the accident, Lantz worked his regularly assigned shift.and was informed that he would need to “hold over” and serve as the watch commander for the next shift, which ran from 10:00 p.m. to 6:00 a.m. When a replacement watch commander is needed, the procedure used for selecting the replacement has been agreed upon by the Department of Corrections and Rehabilitation (Department) and the officers’ union. Lantz was assigned the hold-over shift as watch commander in accordance with the reverse seniority procedure because no one had volunteered to take the shift. Lantz had served as watch commander before.

While traveling home, Lantz drove his personal vehicle and the only state property he transported to and from work was a protective vest. With regard to commutes in general, Lieutenant Contreras testified that Department employees were not paid for their commuting time, were not required to own personal vehicles, and were not required to wear their uniforms to and from work. In fact, correctional officers were advised to remove or cover the upper part of their uniform when commuting. Lockers at the prison are unassigned and available on a first come, first serve basis. As a result, many correctional officers wear their uniforms to work, but wear something over the shirt during their commute. He died as a result of a fatal accident on his way home after the “hold over” shift.

Lantz’s widow, on behalf of herself and four children (applicants), applied for workers’ compensation benefits, contending that Lantz sustained the fatal injury during the course of his employment. After a trial, Workers’ Compensation Administrative Law Judge Robert K. Norton issued an order that included findings of fact. The first finding stated that Lantz “sustained an injury arising out of and in the course of his employment resulting in his death.”

The State Compensation Insurance Fund (State Fund) filed a petition for reconsideration which was granted. The WCAB rescinded the order and determined that (1) the one-way commute of more than 85 miles traveled by Lantz, while significant, constituted the ordinary, local commute that marked Lantz’s transit to and from work and (2) the change in schedule caused by the second shift did not, by itself, mean the departure time was not fixed. Accordingly, the WCAB concluded that the going and coming rule would control the outcome unless the “special mission” exception applied. The WCAB concluded that it was not extraordinary for Lantz to be held over and required to work a second shift – an occurrence so common that the employer and officers’ union had established official procedures for assigning hold-over shifts. Second, the WCAB indicated that requiring Lantz to act as the watch commander was not extraordinary because it was part of established procedures, the duties performed in that position were similar to his usual responsibilities, and Lantz was among the officers regularly assigned to that position. The WCAB stated the assignment as watch commander increased the number of individuals under his authority, but the activities of the watch commander were not dramatically different from Lantz’s day-to-day obligations. Consequently, the WCAB granted the petition for reconsideration and ordered the substitution of a finding that stated Lantz “did not sustain an injury arising out of and in the course of his employment with defendant, resulting in his death.”

In March 2013, the Court of Appeal issued an order summarily denying applicants’ petition for writ of review. Applicants then filed a petition for review with the California Supreme Court, which was granted with directions for this court to issue a writ of review. Accordingly, the Court of Appeal reviewed the case affirmed the denial of death benefits in the published opinion of Lantz v WCAB The Court concluded that “The Workers’ Compensation Appeals Board (WCAB) denied the application for benefits, determining that the hold-over shift as watch commander was not extraordinary because, among other things, it was assigned in accordance with procedures agreed upon by the prison administration and the officers’ union and did not dramatically change his activities. We conclude the WCAB’s decision involved weighing evidence and choosing among conflicting inferences that could be drawn from that evidence and, therefore, is properly characterized as a finding of fact. Under the standards for judicial review established by the Labor Code, we must uphold the finding of fact that the hold-over shift was not extraordinary because it is supported by substantial evidence. Therefore, the decision of the WCAB denying benefits is affirmed.” .

The Division of Workers’ Compensation (DWC) is issuing a notice of public hearing for the Medical Treatment Utilization Schedule (MTUS) regulations. The proposed rulemaking sets forth a framework to determine best practices for providing medical care for work – related illnesses or injuries. A public hearing on the proposed regulations has been scheduled at 10 a.m., July 1, in the auditorium of the Elihu Harris Building, 1515 Clay Street, Oakland, CA 94612. Members of the public may also submit written comment on the regulations until 5 p.m. that day.

The proposed amendments to the MTUS clarify the scientific process by which evidence – based clinical decisions should be made for individuals diagnosed with industrial conditions. The role of the MTUS is clearly established as the standard for the provision of medical care in accordance with Labor Code section 4600. The proposed regulations then set forth the process used to determine reasonable and necessary medical care when the MTUS is silent on a particular medical condition, therapeutic procedure, or diagnostic test or when the MTUS is successfully rebutted pursuant to Labor Code section 4604.5.

The process begins with a medical literature search sequence to guide those making treatment decisions in finding recommendations applicable to the injured worker’s medical condition. The proposed regulations detail how medical evidence shall be evaluated according to an explicit, systematic, strength – of – evidence methodology to determine which recommendation is supported with the best available evidence. Recommendations supported with the best available medical evidence shall be used to determine what is reasonably required to cure or relieve the injured worker from the effects of his or her injury.

Finally, the proposed regulations add two additional members to the Medical Evidence Evaluation Advisory Committee (MEEAC) and address the role and duties of MEEAC.

The proposed changes to the MTUS regulations start with section 9792.20 of Title 8 of the California Code of Regulations.

DWC will consider all public comments, and may modify the proposed regulations for consideration during an additional 15 – day public comment period. The notices of rulemaking, text of the regulations, and the initial statements of reasons can be found on the MTUS rulemaking page .

The Division of Workers’ Compensation has issued a notice of public hearing for proposed Copy Service Fee Schedule regulations. The public hearing has been scheduled for 10 a.m. Tuesday, July 1 in Room 1 of the Elihu Harris Building, 1515 Clay Street, Oakland, CA 94612. Members of the public may also submit written comments on the regulations until 5 p.m. that day.

“This Copy Service Fee Schedule will reduce litigation and allow providers to submit fee disputes to independent bill review,” says DWC Acting Administrative Director Destie Overpeck. “It will also add clarity regarding allowable services to copy service providers and payers.”

The fee schedule was developed in consultation with the Commission on Health and Safety and Worker’s Compensation (CHSWC). Senate Bill 863 requires DWC to implement a schedule of reasonable maximum fees for copying and related services. The Copy Service Fee Schedule provides for a maximum flat fee of $180 for records up to 500 pages and includes all associated services such as pagination, witness fees, and subpoena preparation. For more than 500 pages, an additional per page fee of 20 cents per page is allowed. Certificates of no record would be payable at a maximum of $100.

Proposed changes include allowing DWC to bill $85 an hour instead of $40 an hour for electronic requests made under the Public Records Act and to charge $1 for CDs of these records. The proposed changes also include an allowance for DWC to dispose of paper adjudication documents after 20 years and replaces deposits required for DWC transcripts with an up-front $150 fee for transcripts of 50 pages and under. For transcripts over 50 pages, an extra $3 per page would be paid before the transcript is released.

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