Category: Daily News

Thomas Alberda began work as a full-time Fresno County deputy sheriff in 1993. Before his employment, Alberda had two surgeries on his right knee: The first, in 1981, was to repair damage he sustained when he dislocated his right knee while playing high school basketball; the second, in 1984, was to remove a chip in the right knee which occurred while playing basketball. The knee did not require ongoing treatment; Alberda passed his Fresno County pre-employment physical as well as the physical requirements of the law enforcement academy.

In May 1995, Alberda hyper-extended his right leg while on duty, causing an internal derangement that required surgery, which Malcolm E. Ghazal, M.D. performed that month. Before the surgery, Dr. Ghazal advised Alberda that while the surgery would relieve his immediate symptoms, he had underlying arthritis in his knee which would continue to worsen with time and eventually could require a significant surgical procedure. Dr. Ghazal, however, hoped such a surgery could be deferred for “many years to come.” In August 1995, Alberda returned to full duty without restriction.

Sometime in 2003, Alberda, who is six feet, seven inches tall, was assigned a smaller patrol vehicle in which he did not comfortably fit; while he could work, his knees were crammed into the dashboard. After about a year, he began having severe problems with both knees and was in continual pain. He stopped working in June 2005 due to the pain in his knees and sought treatment from Marc Johnson, M.D. Orthopedic surgeon Ronald R. Castonguay, M.D. performed surgeries to repair meniscus tears on both of Alberda’s knees: the first, on September 16, 2005, was on his right knee, and the second, on October 28, 2005, was on his left knee. Alberda did not recall any specific injury to his left knee during his career, although he recalled an instance in 2001 in which he went to the hospital after he had “gone down hard” on the left knee while arresting a suspect. He thought a report of the incident had been prepared, but one was never located.

In March 2007, Alberda filed an application for a service-connected disability retirement. On April 4, 2008, the Board denied the application and instead approved the grant of a non-service connected disability retirement if Alberda wished to apply for one. Alberda submitted a request for a hearing on the Board’s decision, which was held on March 8, 2010.

The hearing officer found that Alberda’s permanent incapacity was not the result of injury or disease arising out of and in the course of his employment, and that his employment did not contribute substantially to his disability concluding that “[Alberda] had a lot of degenerative problems and it is reluctantly concluded that it is those problems and not the 1995 trauma and the 2003 assignment that led to his 2005 incapacity. The preponderance of the evidence does not establish that [Alberda]’s employment contributed substantially to his permanent incapacity. The causal connection between the job and the disability must be real and measurable and substantial and such is not found to be the case herein.”

The Superior Court affirmed the hearing officer stating “the standard of review was independent judgment, in which the trial court must afford a strong presumption of correctness concerning the administrative findings and the party challenging the administrative decision bears the burden of convincing the court the findings are contrary to the weight of the evidence.”

The Court of Appeal in the published opinion of Thomas Alberta v Board of Retirement of Fresno County Employees’ Retirement Association reversed and remanded the case.

Instead of undertaking an independent determination of whether Alberda’s disability was service-connected, the trial court denied the petition after concluding substantial evidence supported the hearing officer’s finding on that issue.

“The trial court’s written order demonstrated it did not review the Board’s decision in the required manner. While the trial court began the statement of decision by stating the correct standard of review, i.e. independent judgment, it went on to say that “substantial evidence supports the hearing officer’s decision” that Alberda was not entitled to service-connected disability retirement benefits, that “substantial evidence supports” that the 1995 injury and the 2003 assignment to a smaller squad car did not contribute substantially to Alberda’s incapacity, and “[s]ubstantial evidence supports the hearing officer’s finding” that Alberda’s degenerative problems led to his disability.

The Medical Board of California has largely failed to implement key provisions of a law intended, in part, to provide consumers with better information about physician-owned, outpatient surgery centers according to the article on the Public Radio (KPCC) website. Senate Bill 100 requires the Medical Board of California to “obtain and maintain” a list of accredited outpatient settings, including the names of all doctor-owners and their medical license numbers. The board must post that information on its website, which must also note whether a facility has had its accreditation suspended or revoked. But the medical board has yet to fully implement those provisions, which became law on Jan, 1, 2012. The information is not only hard to locate on the medical board’s site, but that contains a jumble of mostly incomplete records that provide little value to the public.

KPCC reviewed 100 surgery centers listed on the site; only 14 included the name of a doctor-owner, and only five provided the doctor-owner medical license number as required by California Health and Safety Code Section 1248.2 (b). Also missing from most of the records listed was information on whether a surgery center had its accreditation suspended or revoked. Consumers Union also reviewed the listing of surgery centers on the medical board’s website, and got similar results.

“Of the first 25 that came up, 18 of them did not have the name of the doctor who owned it, which is a pretty critical piece of information for consumers and for any kind of accountability,” said Lisa McGiffert, director of Consumer Union’s Safe Patient Project, a national campaign that for the past year has focused on oversight of California’s physician-owned surgery centers.

“This is an absolute failure to comply,” said Los Angeles consumer attorney Kathryn Trepinski, who testified in Sacramento last year on behalf of SB100. Trepinski represents Betty Brown of Torrance, whose sister died in December 2010, three days after undergoing lap-band weight-loss surgery at a physician-owned surgery center in Beverly Hills owned by brothers Michael and Julian Omidi. The Omidis were behind the once-popular 1-800-GET-THIN campaign. Brown has filed a wrongful death lawsuit against the Omidis.Trepinski said she was disturbed to find the website listing for the clinic did not mention the Omidis or any other owners. Without such information, she says, consumers checking out the center may be hard-pressed to learn that the medical board revoked Julian Omidi’s license to practice in 2007 and suspended Michael’s Omidi’s license in 2008, for three years.”People need to know the identities of physicians who own and run these centers so they can check their disciplinary records and their backgrounds,” she said. “This is a key part of patient safety and it’s important public health information.”

In an interview with KPCC, Medical Board of California Executive Director Linda Whitney acknowledged the website is incomplete and problematic. “It’s not the most consumer-friendly, I do admit that,” said Whitney, who noted that the agency is currently carrying out an agency-wide overhaul of its computer system. “So, unfortunately, it has not been the highest priority to refine that website. In the coming year we hope to make it much more consumer friendly,” she said.

Whitney said the website doesn’t have a complete list of surgery centers because her board told accrediting agencies that they don’t have to provide the data on a particular facility until its accreditation comes up for renewal. The agencies hadn’t collected owner information before, so this approach was designed to give them time to figure out best how to get it, she said. But because surgery centers’ accreditation comes up for renewal only once every three years, some of the information won’t get to the medical board – or consumers – until 2015.

A federal jury has convicted a Buena Park doctor for participating in a health care fraud scheme involving unnecessary procedures and prescriptions that led to Medicare paying out nearly $3 million on fraudulent claims for durable medical equipment and nutritional supplies.

Following a five-day trial, Dr. Augustus Ohemeng, 62, was found guilty of six counts health care fraud.

While serving as medical director at Pacific Clinic in Long Beach, Ohemeng and others recruited Medicare patients and billed the national healthcare program for office visits that typically included unnecessary tests and procedures. The evidence presented at trial showed that Ohemeng also generated fraudulent prescriptions for medical equipment, power wheel chairs and enteral nutritional supplies, prescriptions that were sold to medical supply companies that used the fraudulent documents to bill Medicare for millions of dollars of unnecessary and undelivered medical supplies. “Nearly all, if not all, of the wheelchair prescriptions Ohemeng and [George Tarryk, another doctor who worked at Pacific Clinic] signed were written for people who could walk,” according to court documents.

Over the course of four years, Ohemeng signed hundreds of these fraudulent prescriptions, many of which were blank so his office manager could fill in the details.

As a result of the fraudulent conduct involving Ohemeng and his co-conspirators, which took place from February 2005 through September 2009, $5.6 million in fraudulent claims were submitted to Medicare, which paid approximately $2.97 million.

As a result of the guilty verdicts, Ohemeng faces a maximum statutory sentence of 60 years in federal prison when he is sentenced on June 17 by United States District Judge Christina A. Snyder.

Ohemeng was among 10 defendants – including two doctors and a nurse – who were charged as a result of an investigation into Pacific Clinic, Ivy Medical Supply in Anaheim and Santos Medical Supply in South Los Angeles. All 10 defendants, including the owner of Ivy Medical Supply, have now been convicted, either as the result of guilty pleas or jury verdicts.

The investigation in this case was conducted by the Federal Bureau of Investigations and the Office of Inspector General for the U.S. Department of Health and Human Services.

The Workers’ Compensation Appeals Board has issued a notice of public hearing regarding proposed amendments to its Rules of Practice and Procedure. The public hearing is scheduled for 10 a.m. Tuesday, April 16 in the Santa Barbara Room, Basement Level, of the Hiram Johnson State Office Building, 455 Golden Gate Ave., San Francisco, CA 94102. Members of the public may also submit written comment on the proposed Rules amendments until 5 p.m. that day.

These changes are largely being proposed in light of Senate Bill 863 (Stats. 2012, ch. 363 [SB 863].)

The WCAB’s notice of the proposed rulemaking, the text of the proposed regulations, and the initial statement of reasons have been posted online.

Public comment will begin promptly at 10:00 a.m. and will conclude when the last speaker has finished his or her presentation. Testimony will be limited to 10 minutes per speaker and should be specific to the proposed regulations. If public comment concludes before the Noon recess, no afternoon session will be held. Although equal weight will be accorded to oral and written comments, the WCAB prefers written comments to oral testimony and prefers written comments submitted by e-mail. If written comments are submitted by the deadline of April 16 no later than 5 p.m., it is not necessary to present oral testimony at the public hearing.

Comments may be submitted by e-mail to WCABRules@dir.ca.gov or they may be mailed to: Workers’ Compensation Appeals Board, Attention: Annette Gabrielli, Regulations Coordinator, P.O. Box 429459, San Francisco CA 94142-9459. Comments also may be submitted by facsimile (Fax) at 1-415-703-4549.

The WCAB will consider all timely public comments and it encourages all interested members of the workers’ compensation community to participate in this important process.

After reviewing the proposed changes there are a few notable comments. “Nothing in the WCAB’s current Rules expressly provides that its provisions are severable and that if any provision (section or subdivision) is declared invalid, then other provisions are not affected. Amending Rule 10300 to add proposed subdivision (b) would expressly declare this intention. Amending Rule 10300 to add proposed subdivision (b) would expressly declare this intention. This is consistent with uncodified provisions of S.B. 863.”

The WCAB says “this is a strictly precautionary provision. Some workers’ compensation commentators have suggested the possibility of constitutional challenges to certain provisions of SB 863. Therefore, in the event an appellate court declares that any WCAB Rule or a statutory provision on which it is based is unconstitutional, this proposed change to Rule 10300 will minimize the impact of any such declaration. It will also minimize the impact of any appellate declaration that a provision of a WCAB Rule is inconsistent with statute or in excess of the WCAB’s authority.”

In the case of Martin Trapero v North American Pneumatics: State Compensation Insurance Fund, Trapero, sustained an admitted industrial injury on March 3, 2000. The parties agreed to use multiple AMEs to resolve the case, including an agreement to use Dr. Thompson as their AME in orthopedics. Dr. Thompson examined applicant and issued a report dated June 19,2008. On December 29, 2009, applicant’s attorney noticed Dr. Thompson’s deposition for January 11, 2010. Approximately five to eight minutes before the deposition began, applicant’s attorney handed defense counsel a vocational evaluation report dated January 5, 2010, prepared by Mr. Mark Remas. The report was presented to Dr. Thompson after the deposition began. At page 23 of the deposition, when applicant’s attorney attempted to ask Dr. Thompson to “take a look” at the vocational evaluation report and “perform a cursory review,” defense counsel interjected: “I object to that.”

Based upon applicant’s attorney’s alleged violation of section 4062.3, defendant filed a petition to strike Dr. Thompson’s report and deposition. The matter proceeded to hearing on March 28, 2011. The workers’ compensation judge concluded that there was no violation of Labor Code section 4062.3 when applicant’s attorney handed a recently-procured vocational evaluation report to defense counsel a few minutes before the deposition of the Agreed Medical Evaluator was to begin.

The State Compensation Insurance Fund (SCIF), filed a timely petition for reconsideration. SCIF contended that: (1) applicant’s attorney’s “hand delivery method” of service was not a legally acceptable method of service intended by the Legislature under section 4062.3; (2) the purpose of section 4062.3 is to protect the impartiality of the medical-legal process, and a party who initiates communication with an AME with only a few minutes prior notice to the opposing party may be perceived by the AME as attempting to influence the process; and (3) to interpret the statute in such a way as to permit applicant’s attorney’s “subsequent communication” would be to violate the principles of statutory construction.

The WCAB panel agreed with the SCIF and reversed and returned the matter for further proceedings.

“The vocational report falls within the definition of “information” described in section 4062.3. That is, the vocational report is a “nonmedical record relevant to determination of a medical issue” under section 4062.3(a)(2). Furthermore, subdivision (c) states that if an AME is selected, “as part of their agreement on an evaluator, the parties shall agree on what information is to be provided’ to the AME.”

“Here, in springing the vocational report on defense counsel when the AME was about to be deposed, applicant’s attorney denied defense counsel the opportunity to determine if this new “information” was something that he would agree to provide to the AME. Section 4062.3(c), in stating that the “information” that is to be provided to the AME must be agreed upon by the parties “as part of their agreement on an evaluator,” makes clear that providing “information” to the AME is nothing casual, but goes to the heart of the AME agreement. If the “information” is not agreed to, the AME is not agreed to either. Defense counsel objected to the “information” during the AME’s deposition, so it was not “information” that defense counsel agreed to, and it should not have been provided to the AME at that time.”

“In reaching this conclusion, we are mindful that the impartiality and appearance of impartiality of the medical evaluator, whether an AME or PQME, is paramount. (See Alvarez v. Workers’ Comp Appeals Bd. (2010) 187 Cal.App 4th 575, 589 [75 Cal.Comp.Cases 817, 826].)”