Arthur Cannon injured his left foot and heel while working as a police officer for the City of Sacramento. He was diagnosed with plantar fasciitis and provided with physical therapy, cortisone injections , and an orthotic device. His primary treating physician found him permanent and stationary in January 2010, with no impairme nt of his activities of daily living and capable of performing his usual occupation.
An agreed medical examiner, Dr. William Ramsey, agreed Cannon was permanent and stationary and that there was no impairment but recommended that he be precluded from such things as prolonged running. Dr. Ramsey explained in a supplemental report that at the time of his original report, he was "unable to offer any impairment from a strict interpretation of the AMA Guides, 5th Edition" because "other than some tenderness, no objective abnormalities were identifiable." Now, however, Dr. Ramsey determined that it was acceptable to characterize Cannon’s residual condition "using a gait derangement abnormality" "by analogy, using Almaraz/Guzman-II as a basis." Noting that Cannon’s problem was "relatively mild," with "the left heel causing weightbearing problems" and the likelihood that the condition "would . . . be aggravated appreciably by running activity on other than a short-term basis," Dr. Ramsey recommended characterizing Cannon by reference to "Table 17-5, page 529," as having "a limp, despite the absence of any arthritic changes about adjacent joints, equivalent to 7% whole person impairment."
Ramsey continued to explain in yet another subsequent report that because Cannon’s heel pain "interferes with weightbearing activities, particularly running," he "thought that by analogy, it would be similar to an individual with a limp and arthritis, resulting in the 7% impairment recommended." He conceded however that that "heel pain, or for that matter, other aspects of pain that do not have any accompanying objective measurement abnormalities, do not rate anything in the AMA Guides, whether or not these problems interfere with one’s activities."
In a trial brief, the city argued that a rating by analogy under Almaraz/Guzman would be proper only if the case could be characterized as "complex or extraordinary," which Cannon’s injury could not be. The workers’ compensation judge (judge) agreed, finding that Cannon had no permanent disability because his medical condition was not complex or extraordinary and therefore did not warrant departure from a strict application of the AMA Guides.
Cannon petitioned for reconsideration, arguing that a case does not have to be complex or extraordinary to be rated by analogy under Almaraz/Guzman. The board granted reconsideration and, agreeing with Cannon in a split panel decision, rescinded the judge’s findings and award and returned the matter to him for a new permanent disability rating based on Dr. Ramsey’s findings.
The Court of Appeal affirmed the award in the unpublished case of City of Sacramento v WCAB (Cannon).
The city argued that a rating by analogy under Almaraz/Guzman is permissible only in complex or extraordinary cases. The Court of Appeal disagreed. It concluded that "this is an unwarranted interpretation of the Sixth District’s decision in Milpitas Unified. What the Sixth District said was this: 'The Guides . . . cannot rate syndromes that are ‘poorly understood and are manifested only by subjective symptoms.’ [Citation.] [¶] To accommodate those complex or extraordinary cases, the Guides calls for the physician’s exercise of clinical judgment to assess the impairment most accurately.' (Milpitas Unified, supra, 187 Cal.App.4th at p. 823, italics added.) Thus, the Sixth District was using the term 'complex or extraordinary cases' to describe 'syndromes that are ‘poorly understood and are manifested only by subjective symptoms,' which the AMA Guides do not, and cannot, rate."
"It is undisputed that Cannon’s condition -- plantar fasciitis -- is manifested only by his subjective experience of pain. Thus, his condition appears to fall right into the category of cases the Sixth District was describing in Milpitas Unified, where the AMA Guides 'calls for the physician’s exercise of clinical judgment to assess the impairment most accurately.' (Milpitas Unified, supra, 187 Cal.App.4th at p. 823.) Dr. Ramsey performed that assessment here and determined that Cannon’s plantar fasciitis resulted in a 7 percent whole person impairment equivalent to a limp with arthritis. The city has shown no error in that assessment and no error in the board’s decision based on that assessment." ...
An agreed medical examiner, Dr. William Ramsey, agreed Cannon was permanent and stationary and that there was no impairment but recommended that he be precluded from such things as prolonged running. Dr. Ramsey explained in a supplemental report that at the time of his original report, he was "unable to offer any impairment from a strict interpretation of the AMA Guides, 5th Edition" because "other than some tenderness, no objective abnormalities were identifiable." Now, however, Dr. Ramsey determined that it was acceptable to characterize Cannon’s residual condition "using a gait derangement abnormality" "by analogy, using Almaraz/Guzman-II as a basis." Noting that Cannon’s problem was "relatively mild," with "the left heel causing weightbearing problems" and the likelihood that the condition "would . . . be aggravated appreciably by running activity on other than a short-term basis," Dr. Ramsey recommended characterizing Cannon by reference to "Table 17-5, page 529," as having "a limp, despite the absence of any arthritic changes about adjacent joints, equivalent to 7% whole person impairment."
Ramsey continued to explain in yet another subsequent report that because Cannon’s heel pain "interferes with weightbearing activities, particularly running," he "thought that by analogy, it would be similar to an individual with a limp and arthritis, resulting in the 7% impairment recommended." He conceded however that that "heel pain, or for that matter, other aspects of pain that do not have any accompanying objective measurement abnormalities, do not rate anything in the AMA Guides, whether or not these problems interfere with one’s activities."
In a trial brief, the city argued that a rating by analogy under Almaraz/Guzman would be proper only if the case could be characterized as "complex or extraordinary," which Cannon’s injury could not be. The workers’ compensation judge (judge) agreed, finding that Cannon had no permanent disability because his medical condition was not complex or extraordinary and therefore did not warrant departure from a strict application of the AMA Guides.
Cannon petitioned for reconsideration, arguing that a case does not have to be complex or extraordinary to be rated by analogy under Almaraz/Guzman. The board granted reconsideration and, agreeing with Cannon in a split panel decision, rescinded the judge’s findings and award and returned the matter to him for a new permanent disability rating based on Dr. Ramsey’s findings.
The Court of Appeal affirmed the award in the unpublished case of City of Sacramento v WCAB (Cannon).
The city argued that a rating by analogy under Almaraz/Guzman is permissible only in complex or extraordinary cases. The Court of Appeal disagreed. It concluded that "this is an unwarranted interpretation of the Sixth District’s decision in Milpitas Unified. What the Sixth District said was this: 'The Guides . . . cannot rate syndromes that are ‘poorly understood and are manifested only by subjective symptoms.’ [Citation.] [¶] To accommodate those complex or extraordinary cases, the Guides calls for the physician’s exercise of clinical judgment to assess the impairment most accurately.' (Milpitas Unified, supra, 187 Cal.App.4th at p. 823, italics added.) Thus, the Sixth District was using the term 'complex or extraordinary cases' to describe 'syndromes that are ‘poorly understood and are manifested only by subjective symptoms,' which the AMA Guides do not, and cannot, rate."
"It is undisputed that Cannon’s condition -- plantar fasciitis -- is manifested only by his subjective experience of pain. Thus, his condition appears to fall right into the category of cases the Sixth District was describing in Milpitas Unified, where the AMA Guides 'calls for the physician’s exercise of clinical judgment to assess the impairment most accurately.' (Milpitas Unified, supra, 187 Cal.App.4th at p. 823.) Dr. Ramsey performed that assessment here and determined that Cannon’s plantar fasciitis resulted in a 7 percent whole person impairment equivalent to a limp with arthritis. The city has shown no error in that assessment and no error in the board’s decision based on that assessment." ...
On December 27, 2013, CMS issued a Notice of Proposed Rule Making relating to circumstances where "applicable plans" (liability insurance, no-fault insurance, and workers’ compensation law or plans) can appeal recoveries which are sought by Medicare under the MSP directly against applicable plans. Organizations or individuals seeking to have commentary considered should provide their recommendations via one of the approved delivery methods as specified in the NPRM no later than 5 pm on February 25, 2014.
The appeals process proposed within this NPRM will strictly be for "applicable plans" as Medicare beneficiaries currently have existing appeal rights where the beneficiary is listed as the debtor. Because there is currently no appeals process for applicable plans in a similar situation, and the SMART Act called upon CMS to create an appeals process for applicable plans, this NPRM has been issued in the efforts to give applicable plans the same rights to appeal as a beneficiary currently has available.
As it relates to the SMART Act, Section 201 specifically requires Medicare to promulgate regulations establishing a right of appeal and appeals process under which the applicable plan involved, or an attorney, agent, or third party administrator on behalf of such plan, may appeal a statement of reimbursement amount. Therefore, this NPRM has been issued to comply with the aforementioned requirement of the SMART Act.
While CMS has noted that the industry has expressed interest in an appeal process for determinations regarding Workers' Compensation Medicare Set Asides (WCMSAs), this NPRM does not address this issue (CMS noted that it will be addressed separately) ...
The appeals process proposed within this NPRM will strictly be for "applicable plans" as Medicare beneficiaries currently have existing appeal rights where the beneficiary is listed as the debtor. Because there is currently no appeals process for applicable plans in a similar situation, and the SMART Act called upon CMS to create an appeals process for applicable plans, this NPRM has been issued in the efforts to give applicable plans the same rights to appeal as a beneficiary currently has available.
As it relates to the SMART Act, Section 201 specifically requires Medicare to promulgate regulations establishing a right of appeal and appeals process under which the applicable plan involved, or an attorney, agent, or third party administrator on behalf of such plan, may appeal a statement of reimbursement amount. Therefore, this NPRM has been issued to comply with the aforementioned requirement of the SMART Act.
While CMS has noted that the industry has expressed interest in an appeal process for determinations regarding Workers' Compensation Medicare Set Asides (WCMSAs), this NPRM does not address this issue (CMS noted that it will be addressed separately) ...
Floyd, Skeren and Kelly LLP is pleased to announce the formation of its disabled veterans litigation unit. The attorneys in this group represent veterans who have claims for benefits pending before the Veteran’s Administration.
Veterans qualify for disability benefits if they suffer from a current diagnosis that has a "nexus" with military service. The scheme of benefits is very similar to workers’ compensation for civilian workers. The veteran need only show active military service, a discharge at greater than dishonorable service and a "nexus" between the current disability and military service to receive benefits. The nexus can be established by direct injury, an aggravation of a disease by military service, or by a presumption of causation imposed by federal law or in other ways. A nexus issue in veteran cases has the same implication as an AOE-COE issue in workers' compensation claims.
Vietnam veterans, for example, who have had "boots on the ground" in Vietnam, even for one day, qualify for the Agent Orange presumption. Agent Orange is one of the herbicides and defoliants used by the military as part of its herbicidal warfare program. Between 1962 and 1971, the military sprayed nearly 20 million gallons of Agent Orange over Vietnam. The product contained an extremely toxic dioxin compound. Dioxins and furans are some of the most toxic chemicals known to science. Vietnam veterans who develop a number of diseases years after service such as ischemic heart disease, diabetes mellitus type II, a number of cancers including prostate cancer (and other listed diseases) are presumed to have a nexus between military service and those medical conditions;
Once a nexus has been established, a veteran may obtain medical care in any VA facility nationwide. This may include free care for health problems in addition to those that are service connected. The veteran may also receive a monthly tax free disability payment. The disability is rated using a rating schedule similar to the workers’ compensation scheme. The rating can increase over time if the condition worsens. There is no time limit to request an increase of a disability award. The system provides death and survivor benefits, payment for at home attendant care, educational and rehabilitation benefits and more.
Another veteran program provides a pension to war era veterans who are totally disabled for any reason even if there is no service connection. This program is "means tested" meaning that current income is measured and used to offset this benefit. If a war era veteran is 65 years of age or older, they are presumed to be totally disabled and entitled to this pension. The means testing allows the veteran to reduce any income by current medical expenses. Thus, even veterans who have a source of income may qualify for a pension if their income is currently used for medical care.
If a veteran’s claim for disability compensation or pension is turned down by the VA Regional Office (RO), they may seek the services of an "accredited" advocate to appeal an unfavorable decision. Lay and attorney advocates must be accredited by the Office of the General Council of the Veterans Administration to assure a minimal level of competency before they can serve a veteran. The appeal begins at the Regional Office where the claim was filed. The Veteran can ask for a de-novo review of the file by a Decision Review Officer (DRO). If unsuccessful, the claim can then be appealed to the Board of Veteran’s Appeals (BVA). The BVA decision can be appealed to the Court of Appeals of Veteran Claims (CAVC) and ultimately to the U.S. Supreme Court. These cases are quite similar to workers’ compensation litigation in that they heavily involve forensic medical issues. Practitioners need considerable experience with medical terminology and medicine in general. Generally advocates can be paid a contingent fee of 20% of accrued and unpaid benefits as of the time of the successful appeal. Thereafter the veteran retains 100% of the balance of the award.
Three of our attorneys, Rene Thomas Folse, Chris Lear and Tim Morgan have been accredited by the VA Office of General Council to represent veterans. Rene is a Vietnam veteran, and Chris is also a veteran who has had several deployments in the Persian Gulf. Both served in the U.S. Army. Tim has a background in the civil litigation of medical malpractice claims and will assist with the complex forensic medical issues.
Any veteran who would like a no-cost consultation about his or her right to benefits may call Rene, 818 651-7028. He is the litigation group lead counsel, and does initial client contact and intake. Since this is a federal program, we can represent veterans nationwide. In those cases we will conduct our interviews by teleconference ...
Veterans qualify for disability benefits if they suffer from a current diagnosis that has a "nexus" with military service. The scheme of benefits is very similar to workers’ compensation for civilian workers. The veteran need only show active military service, a discharge at greater than dishonorable service and a "nexus" between the current disability and military service to receive benefits. The nexus can be established by direct injury, an aggravation of a disease by military service, or by a presumption of causation imposed by federal law or in other ways. A nexus issue in veteran cases has the same implication as an AOE-COE issue in workers' compensation claims.
Vietnam veterans, for example, who have had "boots on the ground" in Vietnam, even for one day, qualify for the Agent Orange presumption. Agent Orange is one of the herbicides and defoliants used by the military as part of its herbicidal warfare program. Between 1962 and 1971, the military sprayed nearly 20 million gallons of Agent Orange over Vietnam. The product contained an extremely toxic dioxin compound. Dioxins and furans are some of the most toxic chemicals known to science. Vietnam veterans who develop a number of diseases years after service such as ischemic heart disease, diabetes mellitus type II, a number of cancers including prostate cancer (and other listed diseases) are presumed to have a nexus between military service and those medical conditions;
Once a nexus has been established, a veteran may obtain medical care in any VA facility nationwide. This may include free care for health problems in addition to those that are service connected. The veteran may also receive a monthly tax free disability payment. The disability is rated using a rating schedule similar to the workers’ compensation scheme. The rating can increase over time if the condition worsens. There is no time limit to request an increase of a disability award. The system provides death and survivor benefits, payment for at home attendant care, educational and rehabilitation benefits and more.
Another veteran program provides a pension to war era veterans who are totally disabled for any reason even if there is no service connection. This program is "means tested" meaning that current income is measured and used to offset this benefit. If a war era veteran is 65 years of age or older, they are presumed to be totally disabled and entitled to this pension. The means testing allows the veteran to reduce any income by current medical expenses. Thus, even veterans who have a source of income may qualify for a pension if their income is currently used for medical care.
If a veteran’s claim for disability compensation or pension is turned down by the VA Regional Office (RO), they may seek the services of an "accredited" advocate to appeal an unfavorable decision. Lay and attorney advocates must be accredited by the Office of the General Council of the Veterans Administration to assure a minimal level of competency before they can serve a veteran. The appeal begins at the Regional Office where the claim was filed. The Veteran can ask for a de-novo review of the file by a Decision Review Officer (DRO). If unsuccessful, the claim can then be appealed to the Board of Veteran’s Appeals (BVA). The BVA decision can be appealed to the Court of Appeals of Veteran Claims (CAVC) and ultimately to the U.S. Supreme Court. These cases are quite similar to workers’ compensation litigation in that they heavily involve forensic medical issues. Practitioners need considerable experience with medical terminology and medicine in general. Generally advocates can be paid a contingent fee of 20% of accrued and unpaid benefits as of the time of the successful appeal. Thereafter the veteran retains 100% of the balance of the award.
Three of our attorneys, Rene Thomas Folse, Chris Lear and Tim Morgan have been accredited by the VA Office of General Council to represent veterans. Rene is a Vietnam veteran, and Chris is also a veteran who has had several deployments in the Persian Gulf. Both served in the U.S. Army. Tim has a background in the civil litigation of medical malpractice claims and will assist with the complex forensic medical issues.
Any veteran who would like a no-cost consultation about his or her right to benefits may call Rene, 818 651-7028. He is the litigation group lead counsel, and does initial client contact and intake. Since this is a federal program, we can represent veterans nationwide. In those cases we will conduct our interviews by teleconference ...
Most California law enacted during the legislative year takes effect on January 1. The following highlights some of the changes that take place in a few weeks in the world of employment law.
California’s minimum wage will increase to $9.00 per hour effective July 1, 2014, and further increase to $10.00 per hour effective January 1, 2016 (AB 10.) In addition to affecting hourly employees, these increases may have an impact on employees who are "exempt" from overtime, due to related increases in threshold compensation that must be paid to qualify for various exemptions. For certain state law executive, administrative and professional exemptions, the employee must be paid a salary of at least twice the state minimum wage for full-time employment. In addition, for the commissioned inside sales exemption, the employee’s earnings must exceed 1½ times the state minimum wage. Employers in the cities of San Francisco and San Jose should also note that effective January 1, 2014, San Francisco’s minimum wage will increase to $10.74 per hour and San Jose’s minimum wage will increase to $10.15 per hour.The compensation threshold for California’s computer software employee exemption increases annually, as it is tied to the Consumer Price Index. Effective January 1, 2014, the threshold compensation component to qualify for this exemption increases to $40.38 per hour, or $7,010.88 per month, or $84,130.53 per year.
In addition, due to passage of the Domestic Worker Bill of Rights Act (AB 241), domestic work employees who work as personal attendants are now eligible for overtime. This generally includes, with some exceptions, individuals who are employed to work in a private household to supervise, feed or dress a child or a person who needs supervision by reason of advanced age, physical disability or mental deficiency. They are entitled to 1½ times their regular rate of pay for work in excess of nine hours in a workday or 45 hours in a workweek.
Under existing Cal-OSHA regulations, employees who work outside in temperatures exceeding 85 degrees must be provided with five-minute cool-down periods (recovery periods) in a shaded area on an as-needed basis to protect from overheating. The Labor Code statute for meal and rest periods has been amended to include recovery periods. (SB 435.) Employers are prohibited from requiring employees to work during a recovery period, and must pay them one additional hour of pay for each workday a required recovery period is not provided.
Companion bills (AB 263, SB 666) protect undocumented workers from retaliation for pursuing employment-related claims. Employers are prohibited from reporting or threatening to report a current, former or prospective employee’s suspected immigration status, or the suspected immigration status of his or her family member, in retaliation for exercising a right related to his or her employment. Violation may result in revocation of the employer’s business license, civil penalties and/or criminal penalties. In addition, an attorney who engages in such conduct toward a witness or party to a civil or administrative action may be subject to suspension, disbarment or other discipline. These new laws further provide that an employer that retaliates against an employee or applicant for exercising rights under the Labor Code may be subject to a civil penalty of up to $10,000. The new laws also clarify that an individual is not required to exhaust administrative remedies or procedures prior to bringing a civil action under the Labor Code, unless the specific Labor Code statute under which the action is brought expressly requires exhaustion of an administrative remedy.
Existing law prohibits employers from retaliating against an employee for disclosing information to a government or law enforcement agency, if the employee has reasonable cause to believe that the information discloses a violation of a state or federal rule or regulation. This law has been expanded to also prohibit retaliation against an employee who makes an internal complaint to a supervisor or other employee with authority to investigate, discover or correct the violation. (SB 496.) The law also has been amended to cover disclosures pertaining to perceived violations of local rules or regulations.
FEHA has been amended (SB 292) to state expressly that sexually harassing conduct need not be motivated by sexual desire. The Legislature made this clarification in response to a California appellate court opinion issued in 2011, Kelley v. The Conco Companies, 196 Cal.App.4th 191.
Current law restricts employers from considering certain criminal records in making hiring or employment decisions. A new law (SB 530) prohibits an employer from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed, unless certain limited exceptions apply.
Multiple new laws augment employment protections for crime victims. Existing law prohibits an employer from taking adverse employment action against an employee who is a victim of domestic violence or sexual assault and needs to take time off from work to seek relief. A new law (SB 400) extends these protections to victims of stalking. This new law additionally expands protections to prohibit retaliation because of the employee’s status as a victim, and requires employers to provide reasonable accommodation upon request for the victim’s safety while at work. Another new law (SB 288) prohibits employers from retaliating against an employee who is a victim of a serious felony or other specified crimes for taking time off from work, upon the victim’s request, to appear in court to testify at related proceedings ...
California’s minimum wage will increase to $9.00 per hour effective July 1, 2014, and further increase to $10.00 per hour effective January 1, 2016 (AB 10.) In addition to affecting hourly employees, these increases may have an impact on employees who are "exempt" from overtime, due to related increases in threshold compensation that must be paid to qualify for various exemptions. For certain state law executive, administrative and professional exemptions, the employee must be paid a salary of at least twice the state minimum wage for full-time employment. In addition, for the commissioned inside sales exemption, the employee’s earnings must exceed 1½ times the state minimum wage. Employers in the cities of San Francisco and San Jose should also note that effective January 1, 2014, San Francisco’s minimum wage will increase to $10.74 per hour and San Jose’s minimum wage will increase to $10.15 per hour.The compensation threshold for California’s computer software employee exemption increases annually, as it is tied to the Consumer Price Index. Effective January 1, 2014, the threshold compensation component to qualify for this exemption increases to $40.38 per hour, or $7,010.88 per month, or $84,130.53 per year.
In addition, due to passage of the Domestic Worker Bill of Rights Act (AB 241), domestic work employees who work as personal attendants are now eligible for overtime. This generally includes, with some exceptions, individuals who are employed to work in a private household to supervise, feed or dress a child or a person who needs supervision by reason of advanced age, physical disability or mental deficiency. They are entitled to 1½ times their regular rate of pay for work in excess of nine hours in a workday or 45 hours in a workweek.
Under existing Cal-OSHA regulations, employees who work outside in temperatures exceeding 85 degrees must be provided with five-minute cool-down periods (recovery periods) in a shaded area on an as-needed basis to protect from overheating. The Labor Code statute for meal and rest periods has been amended to include recovery periods. (SB 435.) Employers are prohibited from requiring employees to work during a recovery period, and must pay them one additional hour of pay for each workday a required recovery period is not provided.
Companion bills (AB 263, SB 666) protect undocumented workers from retaliation for pursuing employment-related claims. Employers are prohibited from reporting or threatening to report a current, former or prospective employee’s suspected immigration status, or the suspected immigration status of his or her family member, in retaliation for exercising a right related to his or her employment. Violation may result in revocation of the employer’s business license, civil penalties and/or criminal penalties. In addition, an attorney who engages in such conduct toward a witness or party to a civil or administrative action may be subject to suspension, disbarment or other discipline. These new laws further provide that an employer that retaliates against an employee or applicant for exercising rights under the Labor Code may be subject to a civil penalty of up to $10,000. The new laws also clarify that an individual is not required to exhaust administrative remedies or procedures prior to bringing a civil action under the Labor Code, unless the specific Labor Code statute under which the action is brought expressly requires exhaustion of an administrative remedy.
Existing law prohibits employers from retaliating against an employee for disclosing information to a government or law enforcement agency, if the employee has reasonable cause to believe that the information discloses a violation of a state or federal rule or regulation. This law has been expanded to also prohibit retaliation against an employee who makes an internal complaint to a supervisor or other employee with authority to investigate, discover or correct the violation. (SB 496.) The law also has been amended to cover disclosures pertaining to perceived violations of local rules or regulations.
FEHA has been amended (SB 292) to state expressly that sexually harassing conduct need not be motivated by sexual desire. The Legislature made this clarification in response to a California appellate court opinion issued in 2011, Kelley v. The Conco Companies, 196 Cal.App.4th 191.
Current law restricts employers from considering certain criminal records in making hiring or employment decisions. A new law (SB 530) prohibits an employer from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed, unless certain limited exceptions apply.
Multiple new laws augment employment protections for crime victims. Existing law prohibits an employer from taking adverse employment action against an employee who is a victim of domestic violence or sexual assault and needs to take time off from work to seek relief. A new law (SB 400) extends these protections to victims of stalking. This new law additionally expands protections to prohibit retaliation because of the employee’s status as a victim, and requires employers to provide reasonable accommodation upon request for the victim’s safety while at work. Another new law (SB 288) prohibits employers from retaliating against an employee who is a victim of a serious felony or other specified crimes for taking time off from work, upon the victim’s request, to appear in court to testify at related proceedings ...
In Title V of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act), Congress established the Federal Insurance Office (FIO) within the U.S. Department of the Treasury. One of the tasks of the FIO is to monitor all aspects of the insurance industry, including identifying issues or gaps in the regulation of insurers that could contribute to a systemic crisis in the insurance industry or the U.S. financial system. The Dodd-Frank Act also requires that the FIO Director report to the President and to the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate each year "on the insurance industry and any other information as deemed relevant by the Director or requested by such Committees." FIO has prepared its 2013 Annual Report on the Insurance Industry with a view to its role as monitor of the insurance industry.
This Report says that the financial performance and condition of U.S. insurers continued to show recovery and improvement from the decline during the financial crisis. In 2012, the U.S. insurance industry reported record aggregate premium levels. The two principal sectors in the U.S. insurance industry are life and health (L/H) and property and casualty (P/C). The U.S. insurance industry currently has more than 1,000 L/H insurers and more than 2,700 P/C insurers. At year-end 2012 reported surplus levels were at record highs for both sectors. Both reported improved profitability in 2012. Market values of insurers have also been recovering since the financial crisis, when large investment losses led to sharp declines in the book values for many insurers..
L/H insurer insolvency levels are at the lowest point in forty years. P/C insurer insolvency levels are at relative lows compared to the last few decades. Insurer insolvencies occurred with some regularity during the late 1980s and early 1990s, and peaked in 1991 at 142. These insolvencies prompted Congressional inquiries and efforts by state regulators to develop a program whereby states were required, through an accreditation process, to adopt solvency laws and regulations that meet certain minimum standards. The laws and regulations of an accredited state must contain provisions substantially similar to, or no less effective than, the significant elements of the NAIC model solvency oversight laws and regulations that state regulators have identified as key. The accreditation standards include compliance with standardized practices, including those pertaining to off-site financial analyses,on-site financial examinations, cross-jurisdictional regulatory information sharing, and assessment and intervention authority with respect to troubled insurers. The accreditation process is a peer review exercise, and all 50 states and the District of Columbia are currently accredited by the NAIC. As a result, the responsibility for taking regulatory actions rests with the insurance regulator of the state in which the legal entity is domiciled. The frequency of L/H insurer insolvencies has decreased since the early 1990s and has remained at relatively low levels for the period during and since the financial crisis. The number of reported financially impaired L/H insurers in recent years is at the lowest since the 1970s.
Despite the seemingly good financial news, the report concludes that insurance regulation in the U.S. is best achieved through a hybrid model in which state and federal authorities can work together, their roles defined by which strength each party brings to the process of improving solvency and market-conduct regulation. According to an article in the Insurance Journal, industry reaction thus far has been measured, if not mostly predictable: David Sampson, president and CEO of the Property Casualty Insurers Association of America, notes that the report "starts by listing a number of attacks on state regulation that PCI believes does not adequately reflect the strengths and historical success of the current state-based system." Similarly, the National Association of Professional Insurance Agents (PIA) says the report fails to properly highlight conclusions of a June 27 Government Accountability Office report stating that the state-based system worked effectively to help mitigate the negative impacts the 2008 financial crisis had on the insurance industry. Interestingly, one group that didn't question the report’s assessment of the state-based system was the National Association of Insurance Commissioners, which is comprised of state-based regulators. NAIC President and Louisiana Insurance Commissioner Jim Donelon says in a statement that the 71-page report "acknowledges the effectiveness of state-based insurance regulation and the improvements states have made." No chest-beating there.Cheering the strengths of state regulation, however, was never the point of the FIO's report.
One of the more colorful turns of phrase in describing the FIO's recommendations was offered by PIA National Executive Vice President and CEO Mike Becker, who said while the group needs to take a closer look at the FIO report, "On first blush, this looks like the camel’s nose under the tent." ...
This Report says that the financial performance and condition of U.S. insurers continued to show recovery and improvement from the decline during the financial crisis. In 2012, the U.S. insurance industry reported record aggregate premium levels. The two principal sectors in the U.S. insurance industry are life and health (L/H) and property and casualty (P/C). The U.S. insurance industry currently has more than 1,000 L/H insurers and more than 2,700 P/C insurers. At year-end 2012 reported surplus levels were at record highs for both sectors. Both reported improved profitability in 2012. Market values of insurers have also been recovering since the financial crisis, when large investment losses led to sharp declines in the book values for many insurers..
L/H insurer insolvency levels are at the lowest point in forty years. P/C insurer insolvency levels are at relative lows compared to the last few decades. Insurer insolvencies occurred with some regularity during the late 1980s and early 1990s, and peaked in 1991 at 142. These insolvencies prompted Congressional inquiries and efforts by state regulators to develop a program whereby states were required, through an accreditation process, to adopt solvency laws and regulations that meet certain minimum standards. The laws and regulations of an accredited state must contain provisions substantially similar to, or no less effective than, the significant elements of the NAIC model solvency oversight laws and regulations that state regulators have identified as key. The accreditation standards include compliance with standardized practices, including those pertaining to off-site financial analyses,on-site financial examinations, cross-jurisdictional regulatory information sharing, and assessment and intervention authority with respect to troubled insurers. The accreditation process is a peer review exercise, and all 50 states and the District of Columbia are currently accredited by the NAIC. As a result, the responsibility for taking regulatory actions rests with the insurance regulator of the state in which the legal entity is domiciled. The frequency of L/H insurer insolvencies has decreased since the early 1990s and has remained at relatively low levels for the period during and since the financial crisis. The number of reported financially impaired L/H insurers in recent years is at the lowest since the 1970s.
Despite the seemingly good financial news, the report concludes that insurance regulation in the U.S. is best achieved through a hybrid model in which state and federal authorities can work together, their roles defined by which strength each party brings to the process of improving solvency and market-conduct regulation. According to an article in the Insurance Journal, industry reaction thus far has been measured, if not mostly predictable: David Sampson, president and CEO of the Property Casualty Insurers Association of America, notes that the report "starts by listing a number of attacks on state regulation that PCI believes does not adequately reflect the strengths and historical success of the current state-based system." Similarly, the National Association of Professional Insurance Agents (PIA) says the report fails to properly highlight conclusions of a June 27 Government Accountability Office report stating that the state-based system worked effectively to help mitigate the negative impacts the 2008 financial crisis had on the insurance industry. Interestingly, one group that didn't question the report’s assessment of the state-based system was the National Association of Insurance Commissioners, which is comprised of state-based regulators. NAIC President and Louisiana Insurance Commissioner Jim Donelon says in a statement that the 71-page report "acknowledges the effectiveness of state-based insurance regulation and the improvements states have made." No chest-beating there.Cheering the strengths of state regulation, however, was never the point of the FIO's report.
One of the more colorful turns of phrase in describing the FIO's recommendations was offered by PIA National Executive Vice President and CEO Mike Becker, who said while the group needs to take a closer look at the FIO report, "On first blush, this looks like the camel’s nose under the tent." ...
The Internal Revenue Service has announced that the standard mileage rate for business miles will decrease from 56.5¢ per mile to 56.0¢ per mile as of January 1, 2014. The California Workers' Compensation Institute notes that this means the mileage rate that California workers' compensation claims administrators pay injured workers for travel related to medical treatment or evaluation of their injuries should be adjusted to the IRS rate for travel on or after January 1, 2014, regardless of the date of injury. Claims administrators, however, should continue to pay the current rate of 56.5¢ per mile for travel from January 1, 2013 through December 31, 2013.
State law [Labor Code §4600 (e)(2)], in conjunction with Government Code §19820 and Department of Personnel Administration regulations, requires claims administrators to reimburse injured workers for such expenses at the rate adopted by the Director of the Department of Personnel Administration for non-represented (excluded) state employees, which is tied to the IRS published mileage rate. In a December 6 news release (http://www.irs.gov/2014-Standard-Mileage-Rates-for-Business,-Medical-and-Moving-Announced), the IRS announced that as of January 1, 2014, the standard mileage rate would decrease to 56.0 cents per business mile driven. The IRS bases the standard mileage rate on an annual study of the fixed and variable costs of operating an automobile.
There have been multiple mileage rate changes since 2008, so the Division of Workers' Compensation has posted downloadable mileage-expense forms that show applicable rates based on travel date. A new form with the 2014 rate is now available ...
State law [Labor Code §4600 (e)(2)], in conjunction with Government Code §19820 and Department of Personnel Administration regulations, requires claims administrators to reimburse injured workers for such expenses at the rate adopted by the Director of the Department of Personnel Administration for non-represented (excluded) state employees, which is tied to the IRS published mileage rate. In a December 6 news release (http://www.irs.gov/2014-Standard-Mileage-Rates-for-Business,-Medical-and-Moving-Announced), the IRS announced that as of January 1, 2014, the standard mileage rate would decrease to 56.0 cents per business mile driven. The IRS bases the standard mileage rate on an annual study of the fixed and variable costs of operating an automobile.
There have been multiple mileage rate changes since 2008, so the Division of Workers' Compensation has posted downloadable mileage-expense forms that show applicable rates based on travel date. A new form with the 2014 rate is now available ...
One of the central features of a value-based healthcare insurance system is a financial "stick." If patients insist on medical procedures that science shows to be ineffective or unnecessary, they'll have to pay for all or most of the cost.
The article in Reuters Health presents the case of Tanner Martin as an example. When the 17 year old developed excruciating back pain last year, he was sure he needed an X-ray to find out what was wrong. So was his mother, who worried that the pain might indicate a serious injury that could cause permanent disability. In Tanner's case, when he and his mother went to the San Luis Valley Regional Medical Center in Alamosa, Colorado, they were invited to watch a short video first. The best approach to back pain like Tanner's, it explained, is stretching, strength-building and physical therapy; X-rays and MRIs, according to rigorous studies, are unlikely to make a difference. If they insisted on the X-ray, they would have to pay $300 on top of the basic cost. They passed on the imaging, knowing they could change their minds if Tanner's condition worsened. After three weeks of therapy, his back was as good as new.
The additional cost when patients choose procedures that research shows are unlikely to help their condition is a key element of San Luis Valley's two-year experiment in value-based insurance, the premise of which is that a mix of financial carrots and sticks can steer patients toward medical services that will help them and away from ineffective or unnecessary ones. Starting in 2014, Engaged Public, the Denver research and consulting firm that designed the study, will scrutinize the two years of data to see what effects the novel plan had on healthcare costs and outcomes.
Healthcare policy wonks have been studying value-based insurance for a decade. For some consumer groups, the concept raises concerns over whether it will deter people from treatment when certain procedures are needed. But the idea has gained momentum since the passage of President Barack Obama's healthcare reform law, which includes provisions to control healthcare spending that now tops $2.7 trillion a year in the United States. About one-third of that is attributed to wasteful or ineffective care. Among the provisions is one that allows state Medicaid programs to adopt value-based designs, as two, in Michigan and South Carolina, have. At least one private insurance plan sold in an "Obamacare" marketplace has done so as well. In addition, Obama's Affordable Care Act encourages doctors and hospitals to form Accountable Care Organizations (ACOs), which are paid more under the Medicare program for older Americans if they control costs while also providing quality care. Some 4 million Medicare enrollees are now in one of the nation's nearly 500 ACOs, and private insurance plans are adopting them as well. Medicare now penalizes hospitals if a patient is re-admitted for the same condition within 30 days.
Advocates of value-based insurance say that while focusing on the "supply side" - hospitals and doctors - is a good start, healthcare spending reforms must also involve the "demand" side: patients. For one thing, they say, patients who know they're on the hook for care that won't benefit them are less likely to badger their providers. "If someone goes to the doctor and really wants antibiotics for a cold or an MRI for back pain, it can take more time to talk him out of it than to order it," said Dr. David Downs, medical director of Engaged Public.
The success of value-based insurance's disincentives is far from assured and has some worried over the extent to which procedures would be considered off-limits. "We have reservations about financial obstacles that might keep patients from getting care they need," said Joyce Dubow, senior healthcare reform director at AARP, the research and lobbying group formerly known as the American Association of Retired Persons. AARP is a partner in Choosing Wisely, a program in which medical specialty groups identify procedures - more than 200 so far - that do not benefit patients, according to rigorous scientific evidence. The list is a benchmark for discouraged procedures in value-based insurance plans.
The very idea that some diagnostic tests and treatments might not help patients comes as a shock to many Americans. The Choosing Wisely message is difficult to convey to the many patients who "think that when it comes to medical care newer is better and more is better," said Dr. Yul Ejnes of Brown University's Alpert Medical School. "So when patients have more skin in the game (in terms of cost), they're more likely to ask, do I really need this?" ...
The article in Reuters Health presents the case of Tanner Martin as an example. When the 17 year old developed excruciating back pain last year, he was sure he needed an X-ray to find out what was wrong. So was his mother, who worried that the pain might indicate a serious injury that could cause permanent disability. In Tanner's case, when he and his mother went to the San Luis Valley Regional Medical Center in Alamosa, Colorado, they were invited to watch a short video first. The best approach to back pain like Tanner's, it explained, is stretching, strength-building and physical therapy; X-rays and MRIs, according to rigorous studies, are unlikely to make a difference. If they insisted on the X-ray, they would have to pay $300 on top of the basic cost. They passed on the imaging, knowing they could change their minds if Tanner's condition worsened. After three weeks of therapy, his back was as good as new.
The additional cost when patients choose procedures that research shows are unlikely to help their condition is a key element of San Luis Valley's two-year experiment in value-based insurance, the premise of which is that a mix of financial carrots and sticks can steer patients toward medical services that will help them and away from ineffective or unnecessary ones. Starting in 2014, Engaged Public, the Denver research and consulting firm that designed the study, will scrutinize the two years of data to see what effects the novel plan had on healthcare costs and outcomes.
Healthcare policy wonks have been studying value-based insurance for a decade. For some consumer groups, the concept raises concerns over whether it will deter people from treatment when certain procedures are needed. But the idea has gained momentum since the passage of President Barack Obama's healthcare reform law, which includes provisions to control healthcare spending that now tops $2.7 trillion a year in the United States. About one-third of that is attributed to wasteful or ineffective care. Among the provisions is one that allows state Medicaid programs to adopt value-based designs, as two, in Michigan and South Carolina, have. At least one private insurance plan sold in an "Obamacare" marketplace has done so as well. In addition, Obama's Affordable Care Act encourages doctors and hospitals to form Accountable Care Organizations (ACOs), which are paid more under the Medicare program for older Americans if they control costs while also providing quality care. Some 4 million Medicare enrollees are now in one of the nation's nearly 500 ACOs, and private insurance plans are adopting them as well. Medicare now penalizes hospitals if a patient is re-admitted for the same condition within 30 days.
Advocates of value-based insurance say that while focusing on the "supply side" - hospitals and doctors - is a good start, healthcare spending reforms must also involve the "demand" side: patients. For one thing, they say, patients who know they're on the hook for care that won't benefit them are less likely to badger their providers. "If someone goes to the doctor and really wants antibiotics for a cold or an MRI for back pain, it can take more time to talk him out of it than to order it," said Dr. David Downs, medical director of Engaged Public.
The success of value-based insurance's disincentives is far from assured and has some worried over the extent to which procedures would be considered off-limits. "We have reservations about financial obstacles that might keep patients from getting care they need," said Joyce Dubow, senior healthcare reform director at AARP, the research and lobbying group formerly known as the American Association of Retired Persons. AARP is a partner in Choosing Wisely, a program in which medical specialty groups identify procedures - more than 200 so far - that do not benefit patients, according to rigorous scientific evidence. The list is a benchmark for discouraged procedures in value-based insurance plans.
The very idea that some diagnostic tests and treatments might not help patients comes as a shock to many Americans. The Choosing Wisely message is difficult to convey to the many patients who "think that when it comes to medical care newer is better and more is better," said Dr. Yul Ejnes of Brown University's Alpert Medical School. "So when patients have more skin in the game (in terms of cost), they're more likely to ask, do I really need this?" ...
CMS plans to award a contract early next year to a company that will conduct fingerprint-based background checks for thousands of Medicare providers and suppliers each year. The contract will come nearly three years after the agency released a final rule on the screening, which is one of several provisions in the Patient Protection and Affordable Care Act giving HHS new tools to crack down on Medicare fraud, particularly in areas of the program that have proved most vulnerable to abuse. Republicans have criticized the administration for not rolling them out faster. It's unclear why the CMS has waited three years to implement the provision. An agency spokesman would say only that the agency "was not prepared at the time of the final rule's effective date." He added that fingerprinting won't begin until two months after the CMS releases additional guidance on the issue, and he did not say when that would be.The winning firm will process the fingerprints within five business days and will report the results as pass, incomplete or fail findings for the CMS' review, according to agency documents.
Tony Rodgers, a principal at the consulting firm Health Management Associates and the former deputy administrator for strategic planning at the CMS, attributed the delay to ironing out technical issues that could trigger liability for the government. These include making sure that the agency has the correct fingerprints, for the correct provider or supplier and making sure the process is fast enough that businesses aren't forced to wait inordinate amounts of time to get paid for services.
The CMS rule on background checks divided Medicare providers and suppliers into three categories based on the risk of fraud. Those in the high-risk category, the CMS said, would be subject to the background checks. They include executives who have at least 5% direct or indirect ownership of newly enrolled home healthcare agencies and durable medical equipment agencies. Those businesses have been significant and persistent sources of Medicare fraud. In fiscal 2011, Medicare spent $18.4 billion on home healthcare and $81 billion on DME.
The industry, eager to shed that reputation, is welcoming the scrutiny. Michael Hamilton, executive director of Alabama Durable Medical Equipment Association, said "it's about time" the fingerprinting provision was beginning. Most DME fraud, he said, is perpetrated by a small group of bad actors "looking to make a quick buck" while the vast majority of companies and their executives are above board. The American Association for Homecare, which represents home health providers and DME suppliers, supports fingerprinting and any provision that would cut down on fraud, a spokesman said.
The background checks are expected to affect as many as 7,500 executives each year, according to the CMS. If they fail, they and their companies could be prohibited from participating in Parts A and B of the Medicare program. To pass, an executive must not have been convicted in the last 10 years of a felony charge for crimes such as murder, rape, extortion, embezzlement, tax evasion and any act that endangers Medicare beneficiaries.
The strength of the screening measure, Rodgers said, lies in public awareness: As word spreads that the CMS is performing the checks, criminals may think twice about attempting to enroll.But Medicare fraud expert Jim Frogue, a partner in the consulting firm FrogueClark, had mixed feelings about the usefulness of the initiative. "CMS has innumerable technological tools it can leverage in 2014 to target Medicare fraud, including pre-payment billing analysis and real-time public records searches," Frogue said. "Fingerprinting belongs more in the Spy Museum." Still, he acknowledged it "could have a positive sentinel effect in weeding out questionable characters from areas particularly prone to fraud like home health and durable medical equipment." ...
Tony Rodgers, a principal at the consulting firm Health Management Associates and the former deputy administrator for strategic planning at the CMS, attributed the delay to ironing out technical issues that could trigger liability for the government. These include making sure that the agency has the correct fingerprints, for the correct provider or supplier and making sure the process is fast enough that businesses aren't forced to wait inordinate amounts of time to get paid for services.
The CMS rule on background checks divided Medicare providers and suppliers into three categories based on the risk of fraud. Those in the high-risk category, the CMS said, would be subject to the background checks. They include executives who have at least 5% direct or indirect ownership of newly enrolled home healthcare agencies and durable medical equipment agencies. Those businesses have been significant and persistent sources of Medicare fraud. In fiscal 2011, Medicare spent $18.4 billion on home healthcare and $81 billion on DME.
The industry, eager to shed that reputation, is welcoming the scrutiny. Michael Hamilton, executive director of Alabama Durable Medical Equipment Association, said "it's about time" the fingerprinting provision was beginning. Most DME fraud, he said, is perpetrated by a small group of bad actors "looking to make a quick buck" while the vast majority of companies and their executives are above board. The American Association for Homecare, which represents home health providers and DME suppliers, supports fingerprinting and any provision that would cut down on fraud, a spokesman said.
The background checks are expected to affect as many as 7,500 executives each year, according to the CMS. If they fail, they and their companies could be prohibited from participating in Parts A and B of the Medicare program. To pass, an executive must not have been convicted in the last 10 years of a felony charge for crimes such as murder, rape, extortion, embezzlement, tax evasion and any act that endangers Medicare beneficiaries.
The strength of the screening measure, Rodgers said, lies in public awareness: As word spreads that the CMS is performing the checks, criminals may think twice about attempting to enroll.But Medicare fraud expert Jim Frogue, a partner in the consulting firm FrogueClark, had mixed feelings about the usefulness of the initiative. "CMS has innumerable technological tools it can leverage in 2014 to target Medicare fraud, including pre-payment billing analysis and real-time public records searches," Frogue said. "Fingerprinting belongs more in the Spy Museum." Still, he acknowledged it "could have a positive sentinel effect in weeding out questionable characters from areas particularly prone to fraud like home health and durable medical equipment." ...
The American Tort Reform Foundation (ATRF) is a District of Columbia nonprofit corporation, founded in 1997. The Foundation says its primary function is to educate the general public about: how the American civil justice system operates; the role of tort law in the civil justice system; and the impact of tort law on the public and private sectors.
The Foundation issued its annual Judicial Hellholes® report this month, naming civil courts in California, Louisiana, New York City, West Virginia, Southwestern Illinois’ Madison and St. Clair counties, and South Florida among the nation’s "most unfair." According to the report, California was ranked as number 1 in the nation. ATRF president Tiger Joyce also said that "this year’s report also identifies 10 marginally less problematic jurisdictions on the ‘Watch List,’ along with some particularly bad court decisions we call 'Dishonorable Mentions.'" The Report says that California remains ignominiously atop the Judicial Hellholes list for a second consecutive year.
The Report goes on to say that California’s addiction to lawsuits claims average residents as victims, too. The California litigation system effectively imposed a $33.5 billion hidden tax - or $883 per resident - just for the costs of lawsuits settled thus far in 2013, reported Orange County Register columnist Joseph Perkins. "Most California residents are blissfully unaware of the tremendous toll lawsuit abuse has on the state," he observed. Perkins pins California’s poor reputation, in part, on former class-action kingpin Bill Lerach, whose seaside La Jolla Farms mansion and revoked bar membership are testimony to both the profitability and unscrupulousness of California’s lawsuit industry. Lerach shows no remorse after pleading guilty for his role in concealing lucrative kickbacks that his former law firm gave to individuals for serving as on-call plaintiffs in its storied securities litigation racket. He told the Wall Street Journal, "I’m proud of the work we did," even after he was disbarred, sentenced to two years in prison, and ordered to pay an $8 million penalty.
The Report cites current litigation trends in the state. Over the past two years, plaintiffs’ lawyers have filed a surge of consumer class actions targeting what they have labeled as "Big Food." Some of these claims are brought by veterans of lawsuits against the tobacco industry who are looking for the next deep pocket to sue. About a dozen plaintiffs’ law firms have taken to the courts with gusto, filing about 75 class action lawsuits between them in the past few years. By one count, which includes filings from additional firms, more than 100 consumer class actions were filed against food makers in 2012 alone, five times the number filed four years earlier. Rarely has there been a week in 2013 without a report of another class action filed against a food maker. In some instances, the lawyers bringing the cases do not even bother to find new clients - they recycle the same individuals as lead plaintiffs, over and over again, in lawsuits involving different manufacturers and products. California is the epicenter of this litigation due to its plaintiff-friendly consumer laws, large population, and the U.S. District Court for the Northern District of California’s growing reputation for receptivity to such claims. Some also point to the federal Ninth Circuit Court of Appeals’ willingness both to uphold questionable class certifications and be quite lenient when it comes to requiring consumers to show they actually relied on allegedly misleading conduct when deciding to purchase a given product. The Northern District of California, located in San Francisco, has earned the derisive moniker of "the food court," since it hosts more food-marketing and food- labeling lawsuits than any other federal court.
For example, plaintiffs’ lawyers filed several cases over the past 15 months against companies like Chobani, Trader Joe’s and WhiteWave, which sells Horizon Organic dairy products and Silk brand products. These lawsuits claim that the companies use the term "evaporated cane juice" instead of "dried sugar cane syrup" or "sugar" to make consumers believe that there is no sugar in their product. As pointed out by WhiteWave, "evaporated cane juice was not controversial until this recent tsunami of lawsuits was filed." An average consumer should not be surprised that cane means sugar.
Another trend - Lawsuits brought ostensibly to enforce technical standards of the Americans with Disabilities Act (ADA) in California reached an all-time high in 2012, making small business owners feel as though they have targets on their backs. In response to the crisis, Sacramento lawmakers enacted S.B. 1186 in September of 2012. Unfortunately, prior to final passage, the bill was stripped of a key provision requiring an attorney to notify a business owner of a violation at least 30 days prior to filing a claim so as to provide the business an opportunity to address the issue. California Citizens Against Lawsuit Abuse called the compromise measure the "most serious attempt at ADA litigation reform to ever come out of the Legislature," but added that it "does not go as far as we would have preferred." Taxpayers in Torrance, California, are now on the hook for at least $75,000 in legal costs, as the town fights a lawsuit challenging the accessibility of a city-owned parking lot. The lawsuit also targeted a popular Italian restaurant and a family-owned bakery that use the lot, even though the businesses have no control over it. That case was filed by a man responsible for filing hundreds of lawsuits in Los Angeles County alone. The plaintiff, Jon Carpenter, is a Los Angeles resident, but is represented by a San Diego law firm that calls itself the Center for Disability Access.
As noted in previous Judicial Hellholes reports, there has been in recent years a steady migration of asbestos lawyers to California from states that, unlike California, have enacted reasonable civil justice reform laws to give asbestos defendants a fairer shake in court. Many of these transplants hail from reform-minded Texas, for example, and have eagerly opened offices in California, particularly in Los ...
The Foundation issued its annual Judicial Hellholes® report this month, naming civil courts in California, Louisiana, New York City, West Virginia, Southwestern Illinois’ Madison and St. Clair counties, and South Florida among the nation’s "most unfair." According to the report, California was ranked as number 1 in the nation. ATRF president Tiger Joyce also said that "this year’s report also identifies 10 marginally less problematic jurisdictions on the ‘Watch List,’ along with some particularly bad court decisions we call 'Dishonorable Mentions.'" The Report says that California remains ignominiously atop the Judicial Hellholes list for a second consecutive year.
The Report goes on to say that California’s addiction to lawsuits claims average residents as victims, too. The California litigation system effectively imposed a $33.5 billion hidden tax - or $883 per resident - just for the costs of lawsuits settled thus far in 2013, reported Orange County Register columnist Joseph Perkins. "Most California residents are blissfully unaware of the tremendous toll lawsuit abuse has on the state," he observed. Perkins pins California’s poor reputation, in part, on former class-action kingpin Bill Lerach, whose seaside La Jolla Farms mansion and revoked bar membership are testimony to both the profitability and unscrupulousness of California’s lawsuit industry. Lerach shows no remorse after pleading guilty for his role in concealing lucrative kickbacks that his former law firm gave to individuals for serving as on-call plaintiffs in its storied securities litigation racket. He told the Wall Street Journal, "I’m proud of the work we did," even after he was disbarred, sentenced to two years in prison, and ordered to pay an $8 million penalty.
The Report cites current litigation trends in the state. Over the past two years, plaintiffs’ lawyers have filed a surge of consumer class actions targeting what they have labeled as "Big Food." Some of these claims are brought by veterans of lawsuits against the tobacco industry who are looking for the next deep pocket to sue. About a dozen plaintiffs’ law firms have taken to the courts with gusto, filing about 75 class action lawsuits between them in the past few years. By one count, which includes filings from additional firms, more than 100 consumer class actions were filed against food makers in 2012 alone, five times the number filed four years earlier. Rarely has there been a week in 2013 without a report of another class action filed against a food maker. In some instances, the lawyers bringing the cases do not even bother to find new clients - they recycle the same individuals as lead plaintiffs, over and over again, in lawsuits involving different manufacturers and products. California is the epicenter of this litigation due to its plaintiff-friendly consumer laws, large population, and the U.S. District Court for the Northern District of California’s growing reputation for receptivity to such claims. Some also point to the federal Ninth Circuit Court of Appeals’ willingness both to uphold questionable class certifications and be quite lenient when it comes to requiring consumers to show they actually relied on allegedly misleading conduct when deciding to purchase a given product. The Northern District of California, located in San Francisco, has earned the derisive moniker of "the food court," since it hosts more food-marketing and food- labeling lawsuits than any other federal court.
For example, plaintiffs’ lawyers filed several cases over the past 15 months against companies like Chobani, Trader Joe’s and WhiteWave, which sells Horizon Organic dairy products and Silk brand products. These lawsuits claim that the companies use the term "evaporated cane juice" instead of "dried sugar cane syrup" or "sugar" to make consumers believe that there is no sugar in their product. As pointed out by WhiteWave, "evaporated cane juice was not controversial until this recent tsunami of lawsuits was filed." An average consumer should not be surprised that cane means sugar.
Another trend - Lawsuits brought ostensibly to enforce technical standards of the Americans with Disabilities Act (ADA) in California reached an all-time high in 2012, making small business owners feel as though they have targets on their backs. In response to the crisis, Sacramento lawmakers enacted S.B. 1186 in September of 2012. Unfortunately, prior to final passage, the bill was stripped of a key provision requiring an attorney to notify a business owner of a violation at least 30 days prior to filing a claim so as to provide the business an opportunity to address the issue. California Citizens Against Lawsuit Abuse called the compromise measure the "most serious attempt at ADA litigation reform to ever come out of the Legislature," but added that it "does not go as far as we would have preferred." Taxpayers in Torrance, California, are now on the hook for at least $75,000 in legal costs, as the town fights a lawsuit challenging the accessibility of a city-owned parking lot. The lawsuit also targeted a popular Italian restaurant and a family-owned bakery that use the lot, even though the businesses have no control over it. That case was filed by a man responsible for filing hundreds of lawsuits in Los Angeles County alone. The plaintiff, Jon Carpenter, is a Los Angeles resident, but is represented by a San Diego law firm that calls itself the Center for Disability Access.
As noted in previous Judicial Hellholes reports, there has been in recent years a steady migration of asbestos lawyers to California from states that, unlike California, have enacted reasonable civil justice reform laws to give asbestos defendants a fairer shake in court. Many of these transplants hail from reform-minded Texas, for example, and have eagerly opened offices in California, particularly in Los ...
The Los Angeles Times reports that a Southern California pain doctor who was featured in a 2012 Times investigative report on patient overdose deaths was barred Monday from writing prescriptions for some narcotics and other widely abused drugs. John Dimowo pleaded not guilty in a court hearing to eight counts of illegally prescribing Vicodin, Norco, Xanax and Adderall to undercover agents who pretended to be patients but had no legitimate need for the drugs. Dimowo, 55, was arrested in October on seven counts of unlawful prescribing; prosecutors added an eighth count Monday, said Los Angeles County Deputy Dist. Atty. John Niedermann.
Prosecutors had hoped to stop Dimowo from practicing medicine while the charges were pending. L.A. County Superior Court Judge Melissa N. Widdifield declined their request. But as a condition of bail, she ordered Dimowo to stop writing prescriptions for the types of drugs at issue in the case. Dimowo, who is free on $60,000 bail, is scheduled to be back in court Feb. 3 for a preliminary hearing to determine whether prosecutors have enough evidence to take him to trial.
Undercover agents posing as patients on visits to Dimowo’s Wilmington office were able to get prescriptions for addictive drugs without the doctor examining them, according to an affidavit. It described Dimowo as a prolific prescriber of painkillers such as Vicodin, writing an average of at least 37 prescriptions a day.
The Times reported last year that five of Dimowo's patients fatally overdosed on medications he prescribed between 2009 and 2010, coroner records show. They ranged in age from 26 to 59. Authorities investigated the deaths but said they did not find sufficient evidence to hold him criminally liable for any of them ...
Prosecutors had hoped to stop Dimowo from practicing medicine while the charges were pending. L.A. County Superior Court Judge Melissa N. Widdifield declined their request. But as a condition of bail, she ordered Dimowo to stop writing prescriptions for the types of drugs at issue in the case. Dimowo, who is free on $60,000 bail, is scheduled to be back in court Feb. 3 for a preliminary hearing to determine whether prosecutors have enough evidence to take him to trial.
Undercover agents posing as patients on visits to Dimowo’s Wilmington office were able to get prescriptions for addictive drugs without the doctor examining them, according to an affidavit. It described Dimowo as a prolific prescriber of painkillers such as Vicodin, writing an average of at least 37 prescriptions a day.
The Times reported last year that five of Dimowo's patients fatally overdosed on medications he prescribed between 2009 and 2010, coroner records show. They ranged in age from 26 to 59. Authorities investigated the deaths but said they did not find sufficient evidence to hold him criminally liable for any of them ...
The British drug maker GlaxoSmithKline will no longer pay doctors to promote its products and will stop tying compensation of sales representatives to the number of prescriptions doctors write, its chief executive said Monday, effectively ending two common industry practices that critics have long assailed as troublesome conflicts of interest. According to the story in the New York Times, the announcement appears to be a first for a major drug company - although others may be considering similar moves - and it comes at a particularly sensitive time for Glaxo. It is the subject of a bribery investigation in China, where authorities contend the company funneled illegal payments to doctors and government officials in an effort to lift drug sales. Glaxo is among the largest drug companies in the world, reporting global third-quarter sales of 6.51 billion pounds, or $10.1 billion, a 1 percent rise from the same period a year ago. Sales fell markedly in China as the investigation proceeded.
Andrew Witty, Glaxo’s chief executive, said in a telephone interview Monday that its proposed changes were unrelated to the investigation in China, and were part of a yearslong effort "to try and make sure we stay in step with how the world is changing," he said. "We keep asking ourselves, are there different ways, more effective ways of operating than perhaps the ways we as an industry have been operating over the last 30, 40 years?"
For decades, pharmaceutical companies have paid doctors to speak on their behalf at conferences and other meetings of medical professionals, on the assumption that the doctors are most likely to value the advice of trusted peers. But the practice has also been criticized by those who question whether it unduly influences the information doctors give each other and can lead them to prescribe drugs inappropriately to patients. All such payments by pharmaceutical companies are to be made public next year under requirements of the Obama administration’s health care law.
Under the plan, which Glaxo said would be completed worldwide by 2016, the company will no longer pay health care professionals to speak on its behalf about its products or the diseases they treat "to audiences who can prescribe or influence prescribing," it said in a statement. It will also stop providing financial support directly to doctors to attend medical conferences, a practice that is prohibited in the United States through an industry-imposed ethics code but that still occurs in other countries. In China, the authorities have said Glaxo compensated doctors for travel to conferences and lectures that never took place. Mr. Witty declined to comment on the investigation because he said it was still underway.
Glaxo will continue to pay doctors consulting fees for market research because Mr. Witty said it was necessary for the company to gain insight from doctors about their products, but he said that activity would be limited in scope. A Glaxo spokesman said that each year the company spends "tens of millions" of dollars globally on the practices that it was ending, but declined to be more specific.
The move won qualified praise from Dr. Jerry Avorn, a professor at Harvard Medical School who has written critically about the industry’s marketing practices. "It’s a modest acknowledgment of the fact that learning from a doctor who is paid by a drug company to give a talk about its products isn’t the best way for doctors to learn about those products," Dr. Avorn said. But he noted that Glaxo would continue to provide what the company described in a statement as "unsolicited, independent educational grants" to continue educating doctors about their products. He said that in the past the grants had often been provided to for-profit companies that rely on such payments from drug companies, raising questions about whether they were providing truly independent information. Mr. Witty said while the details were still being worked out, the company intended to provide such grants to respected educational institutions and medical societies. "I’d like to look for those sorts of partners, and I do not envision these partners being companies or pseudocompanies," he said.
Glaxo is first among its peers to announce a plan to end paid-speaker programs, but it is not the only one considering such a move, said Pratap Khedkar, who oversees the pharmaceutical practice at ZS Associates, a global sales and marketing firm. He said a handful of drug makers were weighing similar actions for several reasons, including concerns about the reaction to the required disclosure of such payments that will begin next fall under a provision of the health care law. Glaxo and several other major companies already report many such payments, but Mr. Khedkar said the new requirements may go farther than what some companies are reporting, and will be accessible on a searchable government website. Previously, "It wasn’t really made public in some big, splashy way," he said.
Jeff Francer, vice president and senior counsel at the Pharmaceutical Research and Manufacturers of America, the industry trade group, said many other companies were looking for ways to better reach increasingly busy doctors - who may not have time to travel to a conference in the first place - and Glaxo’s actions represent just one example. "Of course all of our companies are looking for ways in which they can refine their relationship with physicians to make sure they’re making the best use of physicians’ time," he said ...
Andrew Witty, Glaxo’s chief executive, said in a telephone interview Monday that its proposed changes were unrelated to the investigation in China, and were part of a yearslong effort "to try and make sure we stay in step with how the world is changing," he said. "We keep asking ourselves, are there different ways, more effective ways of operating than perhaps the ways we as an industry have been operating over the last 30, 40 years?"
For decades, pharmaceutical companies have paid doctors to speak on their behalf at conferences and other meetings of medical professionals, on the assumption that the doctors are most likely to value the advice of trusted peers. But the practice has also been criticized by those who question whether it unduly influences the information doctors give each other and can lead them to prescribe drugs inappropriately to patients. All such payments by pharmaceutical companies are to be made public next year under requirements of the Obama administration’s health care law.
Under the plan, which Glaxo said would be completed worldwide by 2016, the company will no longer pay health care professionals to speak on its behalf about its products or the diseases they treat "to audiences who can prescribe or influence prescribing," it said in a statement. It will also stop providing financial support directly to doctors to attend medical conferences, a practice that is prohibited in the United States through an industry-imposed ethics code but that still occurs in other countries. In China, the authorities have said Glaxo compensated doctors for travel to conferences and lectures that never took place. Mr. Witty declined to comment on the investigation because he said it was still underway.
Glaxo will continue to pay doctors consulting fees for market research because Mr. Witty said it was necessary for the company to gain insight from doctors about their products, but he said that activity would be limited in scope. A Glaxo spokesman said that each year the company spends "tens of millions" of dollars globally on the practices that it was ending, but declined to be more specific.
The move won qualified praise from Dr. Jerry Avorn, a professor at Harvard Medical School who has written critically about the industry’s marketing practices. "It’s a modest acknowledgment of the fact that learning from a doctor who is paid by a drug company to give a talk about its products isn’t the best way for doctors to learn about those products," Dr. Avorn said. But he noted that Glaxo would continue to provide what the company described in a statement as "unsolicited, independent educational grants" to continue educating doctors about their products. He said that in the past the grants had often been provided to for-profit companies that rely on such payments from drug companies, raising questions about whether they were providing truly independent information. Mr. Witty said while the details were still being worked out, the company intended to provide such grants to respected educational institutions and medical societies. "I’d like to look for those sorts of partners, and I do not envision these partners being companies or pseudocompanies," he said.
Glaxo is first among its peers to announce a plan to end paid-speaker programs, but it is not the only one considering such a move, said Pratap Khedkar, who oversees the pharmaceutical practice at ZS Associates, a global sales and marketing firm. He said a handful of drug makers were weighing similar actions for several reasons, including concerns about the reaction to the required disclosure of such payments that will begin next fall under a provision of the health care law. Glaxo and several other major companies already report many such payments, but Mr. Khedkar said the new requirements may go farther than what some companies are reporting, and will be accessible on a searchable government website. Previously, "It wasn’t really made public in some big, splashy way," he said.
Jeff Francer, vice president and senior counsel at the Pharmaceutical Research and Manufacturers of America, the industry trade group, said many other companies were looking for ways to better reach increasingly busy doctors - who may not have time to travel to a conference in the first place - and Glaxo’s actions represent just one example. "Of course all of our companies are looking for ways in which they can refine their relationship with physicians to make sure they’re making the best use of physicians’ time," he said ...
U.S. researchers on Monday unveiled a $14 million series of research projects aimed at diagnosing and treating brain injuries in football players and others who have suffered multiple head injuries or concussions. According to the story in Reuters Health, the projects, partly funded by the National Football League, are aimed at chronic traumatic encephalopathy, or CTE, a condition linked to the loss of decision-making control, aggression and dementia. The condition is allegedly tied to repeated hits to the head, such as those experienced by football players, hockey players and boxers. The condition currently can be diagnosed only by examining a person's brain after their death. But researchers with the National Institutes of Health aim to develop tests to detect and treat CTE while the patient is alive.
"This is a public health problem," said Walter Koroshetz, deputy director of the NIH's National Institute of Neurological Disorders and Stroke. "We don't know the mechanics of the head injuries that lead to this, the number and severity that is required to get this. We don't know whether certain people based on their genes are more susceptible or not. There are a lot of questions to be answered."
The NFL in August agreed to pay up to $765 million to settle a lawsuit brought by thousands of former players, many suffering from dementia and other health problems, who accused the league of covering up the risks of brain injury. Many of these players have also filed for workers' compensation benefits in California. The league is paying $12 million of the allocated $14 million in research, the rest of which will be funded by the NIH. The $14 million comes from $30 million in research funding the NFL made available to the NIH in 2012.
The research is not focused just on football players, but any people who engage in activities in which they suffered head injury. Researchers say they also hope to better understand the potential relationship between traumatic brain injury and late-life neurodegenerative disorders, especially Alzheimer's disease. Two of the new research projects will focus on defining the long-term changes that occur in the brain years after a head injury or after multiple concussions. Ten neuropathologists from eight universities will work to describe the chronic effects of head injury in tissue taken from hundreds of individuals as they try to develop standards for diagnosis. Six pilot projects will aim to identify potential biomarkers that can be used to track a person's recovery from concussion. One of the pilot projects will focus on sports concussions in adolescents. Researchers will examine the effects of sports-related concussions on brain structure and function one month following injury in adolescents who have been cleared to resume playing their chosen sports ...
"This is a public health problem," said Walter Koroshetz, deputy director of the NIH's National Institute of Neurological Disorders and Stroke. "We don't know the mechanics of the head injuries that lead to this, the number and severity that is required to get this. We don't know whether certain people based on their genes are more susceptible or not. There are a lot of questions to be answered."
The NFL in August agreed to pay up to $765 million to settle a lawsuit brought by thousands of former players, many suffering from dementia and other health problems, who accused the league of covering up the risks of brain injury. Many of these players have also filed for workers' compensation benefits in California. The league is paying $12 million of the allocated $14 million in research, the rest of which will be funded by the NIH. The $14 million comes from $30 million in research funding the NFL made available to the NIH in 2012.
The research is not focused just on football players, but any people who engage in activities in which they suffered head injury. Researchers say they also hope to better understand the potential relationship between traumatic brain injury and late-life neurodegenerative disorders, especially Alzheimer's disease. Two of the new research projects will focus on defining the long-term changes that occur in the brain years after a head injury or after multiple concussions. Ten neuropathologists from eight universities will work to describe the chronic effects of head injury in tissue taken from hundreds of individuals as they try to develop standards for diagnosis. Six pilot projects will aim to identify potential biomarkers that can be used to track a person's recovery from concussion. One of the pilot projects will focus on sports concussions in adolescents. Researchers will examine the effects of sports-related concussions on brain structure and function one month following injury in adolescents who have been cleared to resume playing their chosen sports ...
The Commission on Health and Safety and Workers’ Compensation (CHSWC) has released the 2013 WOSHTEP Advisory Board Annual Report. WOSHTEP, the Worker Occupational Safety and Health Training and Education Program, is a statewide effort aimed at reducing job-related injuries and illnesses among California workers. This program was created as part of workers’ compensation reform and is administered by CHSWC through inter-agency agreements with the Labor Occupational Health Program (LOHP) at the University of California, Berkeley, the Western Center for Agricultural Health and Safety (WCAHS) at the University of California, Davis, and the Labor Occupational Safety and Health Program (LOSH) at the University of California, Los Angeles.
The WOSHTEP labor-management Advisory Board guides the development of all activities, broadens partnerships with the employer, worker and insurance communities, and evaluates the program. In addition, the Advisory Board prepares an annual written report evaluating the use and impact of the programs developed.
From its inception in 2003 through 2013, WOSHTEP has served about 11,950 workers and about 1,150 employers, through close to 5,650 hours of instruction. In addition, participants in WOSHTEP trainings often provide training and resources to workers at their workplaces, thereby significantly broadening the program’s reach.
Pursuant to Labor Code Section 6354.7(a), insurance carriers who are authorized to write workers’ compensation insurance in California are assessed $100 or .0286 percent of paid workers’ compensation indemnity amounts, whichever is greater, for claims reported for the previous calendar year to the Workers’ Compensation Insurance Rating Bureau (WCIRB). This assessment is then deposited into WOSHEF. CHSWC uses these funds each year to develop and implement WOSHTEP through interagency agreements with the Labor Occupational Health Program (LOHP) at the University of California (UC), Berkeley, and the Labor Occupational Safety and Health Program (LOSH) at the University of California, Los Angeles (UCLA). LOHP provides a subcontract to the University of California, Davis Western Center for Agricultural Health and Safety (WCAHS) to operate WOSHTEP’s Central Valley Resource Center.
To date, WOSHTEP has provided health and safety information and/or training to numerous industries including: janitorial; construction; small manufacturers; corrections and rehabilitation; health care; telecommunications; food service or restaurant; laundry; agriculture; transportation; schools; refineries; warehousing; garment; meat packing; recycling; and state and local government. WOSHTEP is gaining national recognition through CHSWC, LOHP and LOSH presentations at national and state conferences, such as the International Association of Industrial Accident Boards and Commissions (IAIABC), the National Institute for Occupational Safety and Health (NIOSH), the American Society of Safety Professionals, and the American Public Health Association, the National Council for Occupational Safety and Health, and the Annual Conference of the California Community Health Workers Network, as well as through articles written for publications such as the IAIABC Journal, Public Health Reports, the Bureau of National Affairs SafetyNet monthly newsletter, New Solutions; a Journal of Environmental and Occupational Health Policy, and the quarterly magazine for Foodservice Consultants Society International (FCSI) ...
The WOSHTEP labor-management Advisory Board guides the development of all activities, broadens partnerships with the employer, worker and insurance communities, and evaluates the program. In addition, the Advisory Board prepares an annual written report evaluating the use and impact of the programs developed.
From its inception in 2003 through 2013, WOSHTEP has served about 11,950 workers and about 1,150 employers, through close to 5,650 hours of instruction. In addition, participants in WOSHTEP trainings often provide training and resources to workers at their workplaces, thereby significantly broadening the program’s reach.
Pursuant to Labor Code Section 6354.7(a), insurance carriers who are authorized to write workers’ compensation insurance in California are assessed $100 or .0286 percent of paid workers’ compensation indemnity amounts, whichever is greater, for claims reported for the previous calendar year to the Workers’ Compensation Insurance Rating Bureau (WCIRB). This assessment is then deposited into WOSHEF. CHSWC uses these funds each year to develop and implement WOSHTEP through interagency agreements with the Labor Occupational Health Program (LOHP) at the University of California (UC), Berkeley, and the Labor Occupational Safety and Health Program (LOSH) at the University of California, Los Angeles (UCLA). LOHP provides a subcontract to the University of California, Davis Western Center for Agricultural Health and Safety (WCAHS) to operate WOSHTEP’s Central Valley Resource Center.
To date, WOSHTEP has provided health and safety information and/or training to numerous industries including: janitorial; construction; small manufacturers; corrections and rehabilitation; health care; telecommunications; food service or restaurant; laundry; agriculture; transportation; schools; refineries; warehousing; garment; meat packing; recycling; and state and local government. WOSHTEP is gaining national recognition through CHSWC, LOHP and LOSH presentations at national and state conferences, such as the International Association of Industrial Accident Boards and Commissions (IAIABC), the National Institute for Occupational Safety and Health (NIOSH), the American Society of Safety Professionals, and the American Public Health Association, the National Council for Occupational Safety and Health, and the Annual Conference of the California Community Health Workers Network, as well as through articles written for publications such as the IAIABC Journal, Public Health Reports, the Bureau of National Affairs SafetyNet monthly newsletter, New Solutions; a Journal of Environmental and Occupational Health Policy, and the quarterly magazine for Foodservice Consultants Society International (FCSI) ...
The California Commission on Health and Safety and Workers' Compensation (CHSWC) announced the unanimous election of Commissioner Angie Wei as the Chair of the Commission for 2014. Ms. Wei, appointed by the Senate Rules Committee to represent labor, is the legislative director of the California Labor Federation, the state AFL-CIO Federation. Previously Ms. Wei was a program associate for PolicyLine of Oakland, California, and advocated for the California Immigrant Welfare Collaborative, a coalition of four immigrant rights groups that came together to respond to cuts in public benefits for immigrants as a result of the 1996 federal welfare reform law.
Angie was also one of the architects of SB 863. She negotiated provisions of the new law jointly with employer representatives.
CHSWC, created by the workers' compensation reform legislation of 1993, is charged with examining the health and safety and workers' compensation systems in California and recommending administrative or legislative modifications to improve their operation. CHSWC was established to conduct a continuing examination of the workers' compensation system and of the state's activities to prevent industrial injuries and occupational diseases and to examine those programs in other states ...
Angie was also one of the architects of SB 863. She negotiated provisions of the new law jointly with employer representatives.
CHSWC, created by the workers' compensation reform legislation of 1993, is charged with examining the health and safety and workers' compensation systems in California and recommending administrative or legislative modifications to improve their operation. CHSWC was established to conduct a continuing examination of the workers' compensation system and of the state's activities to prevent industrial injuries and occupational diseases and to examine those programs in other states ...
Attorneys general from 28 U.S. states have asked the Food and Drug Administration to reconsider its approval of the powerful painkiller Zohydro ER, which Kentucky's top law enforcement official said could start an epidemic of abuse. The drug, manufactured by Zogenix Inc of San Diego, was approved by the FDA in October.
The article in Reuters Health reports that a panel of outside experts convened In December 2012, by the agency had voted 11-2 against the drug's approval, citing its potential to cause addiction.
Kentucky Attorney General Jack Conway said his state had been hurt by abuse of prescription painkillers, especially OxyContin, and he feared more problems with Zohydro ER. "The approval of this very potent drug is troubling because, unlike extended-release opioids containing abuse-deterrent properties, there is nothing that would prevent someone from easily crushing or injecting Zohydro ER to get high," Conway said.
Conway joined attorneys general from 27 states and the U.S. territory of Guam in signing a letter to FDA Commissioner Margaret Hamburg, dated Tuesday, asking that approval of Zohydro be reconsidered or that the drug be reformulated with chemical deterrents to abuse. "State attorneys general do not want a repeat of the recent past when potent prescription painkilling drugs entered the market without abuse-deterrent qualities and without clear guidance on how they were to be prescribed," the letter said.
The attorneys general said Zohydro reportedly is five to 10 times more potent than standard hydrocodone products.
The FDA approved the drug for daily, long-term treatment for which other options were inadequate. FDA spokeswoman Morgan Liscinsky said the agency would review the attorneys generals' letter and respond.
Abuse of OxyContin became so widespread that manufacturer Purdue Pharma changed its formula in 2010 so that the drug could not be injected or snorted as easily ...
The article in Reuters Health reports that a panel of outside experts convened In December 2012, by the agency had voted 11-2 against the drug's approval, citing its potential to cause addiction.
Kentucky Attorney General Jack Conway said his state had been hurt by abuse of prescription painkillers, especially OxyContin, and he feared more problems with Zohydro ER. "The approval of this very potent drug is troubling because, unlike extended-release opioids containing abuse-deterrent properties, there is nothing that would prevent someone from easily crushing or injecting Zohydro ER to get high," Conway said.
Conway joined attorneys general from 27 states and the U.S. territory of Guam in signing a letter to FDA Commissioner Margaret Hamburg, dated Tuesday, asking that approval of Zohydro be reconsidered or that the drug be reformulated with chemical deterrents to abuse. "State attorneys general do not want a repeat of the recent past when potent prescription painkilling drugs entered the market without abuse-deterrent qualities and without clear guidance on how they were to be prescribed," the letter said.
The attorneys general said Zohydro reportedly is five to 10 times more potent than standard hydrocodone products.
The FDA approved the drug for daily, long-term treatment for which other options were inadequate. FDA spokeswoman Morgan Liscinsky said the agency would review the attorneys generals' letter and respond.
Abuse of OxyContin became so widespread that manufacturer Purdue Pharma changed its formula in 2010 so that the drug could not be injected or snorted as easily ...
Rodger Edward Winkler, 64, a property and casualty agent was arrested by Shasta County District Attorney investigators and charged with numerous felonies including grand theft, insurance fraud and petty theft, for allegedly collecting insurance premiums from clients and issuing bogus insurance certificates. The California Department of Insurance urges anyone who purchased insurance from Winkler to contact their insurance company and verify coverage.
"Winkler's crimes are particularly offensive because he potentially victimized consumers twice," said Insurance Commissioner Dave Jones. "When Winkler stole premiums from consumers and issued bogus insurance certificates, he left them vulnerable to additional loss because they actually did not have coverage for their car, home or business."
The department received several requests for assistance from consumers who claimed that after paying Winkler for insurance coverage they did not receive the coverage promised. Two of the consumers contacted the insurance companies when they did not receive their policies and were told the policies were canceled for non-payment of premium. Other consumers who paid Winkler and received insurance certificates found out the certificates were allegedly fraudulent after the insurance companies confirmed the policy information on the certificates was bogus.
Investigators found that Winkler collected more than $6,000 from clients for workers' compensation, general liability, and commercial automobile insurance coverage and allegedly failed to forward the premium exposing his clients to the risk of uncovered loss.
The Department of Insurance is taking enforcement action to suspend Winkler's agent license and prohibit him from transacting insurance business. The department is also asking anyone that purchased insurance from Winkler and find they do not have legitimate coverage to contact the Consumer Hotline at 800-927-4357.
Winkler is currently out on $50,000 bail and is scheduled for arraignment in Shasta County Superior Court on January 6, 2014 ...
"Winkler's crimes are particularly offensive because he potentially victimized consumers twice," said Insurance Commissioner Dave Jones. "When Winkler stole premiums from consumers and issued bogus insurance certificates, he left them vulnerable to additional loss because they actually did not have coverage for their car, home or business."
The department received several requests for assistance from consumers who claimed that after paying Winkler for insurance coverage they did not receive the coverage promised. Two of the consumers contacted the insurance companies when they did not receive their policies and were told the policies were canceled for non-payment of premium. Other consumers who paid Winkler and received insurance certificates found out the certificates were allegedly fraudulent after the insurance companies confirmed the policy information on the certificates was bogus.
Investigators found that Winkler collected more than $6,000 from clients for workers' compensation, general liability, and commercial automobile insurance coverage and allegedly failed to forward the premium exposing his clients to the risk of uncovered loss.
The Department of Insurance is taking enforcement action to suspend Winkler's agent license and prohibit him from transacting insurance business. The department is also asking anyone that purchased insurance from Winkler and find they do not have legitimate coverage to contact the Consumer Hotline at 800-927-4357.
Winkler is currently out on $50,000 bail and is scheduled for arraignment in Shasta County Superior Court on January 6, 2014 ...
In 2008, Brandon Clark suffered back, head, neck and chest injuries when he fell from a roof while working for South Coast Framing. Brandon's workers' compensation physician prescribed amitriptyline, gabapentin (Neurontin) and hyrdrocodone (Vicodin) for his injuries. Brandon was also taking Xanax and Ambien, which were prescribed by his personal physician in January 2009. Xanax was prescribed for "ongoing anxiety," and Ambien was prescribed for sleeping difficulties. Brandon's personal physician noted that Brandon was "having problems sleeping. This [was] occurring at least 3 or 4 times a week . . . . During these times, [Brandon was] not aware of anxiety or . . . pain."
In July 2009, Brandon died from the combined effects of amitriptyline, gabapentin, Xanax and Ambien, and associated early pneumonia. Brandon's wife, Jovelyn Clark, and their three minor children filed a claim for death benefits alleging the death was the result of the injury and industrially prescribed medications.
The claimant 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. "While there is some difference of opinion on therapeutic and toxic levels of the medications in this particular case, several conclusions can be made. While [Brandon] was prescribed a number of medications only amitriptyline, zolpidem, alprazolam, gabapentin, and acetaminophen were found in peripheral blood specimen. Gastric specimens showed both alprazolam and zolpidem. It is my opinion that gabapentin did not have a role in this particular case. Amitriptyline was prescribed in such low dose, and bloods levels show that the medication was likely taken as prescribed. However, zolpidem [(Ambien)] and alprazolam [(Xanax)] was found in excess of what would be normally considered peripheral blood concentrations. Both these medications work in a similar fashion and would be considered at least additive in their effects. It is my opinion in the case of [Brandon] that it is just this additive effect of zolpidem and alprazolam that caused sedation significant enough to result in the events leading to his death."
"For clarity, it is my opinion that [Brandon] passed away as a result of the additive drug interaction between zolpidem and alprazolam. The two additional medications present in the bloodstream, gabapentin and amitriptyline, were not high enough to result in any coincident drug interaction."
During his deposition Dr. Bruff recognized the limitations of toxicology by noting that mixtures of drugs are difficult to quantify. After repeatedly being pushed to calculate the percentage of amitriptyline's contribution to Brandon's death, Dr. Bruff stressed that no medical person could offer a precise percentage because "it would be closing your eyes and throwing a dart at a dartboard."
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 Court supported the reversal on the following analysis.
"Here, Dr. Bruff admitted that it is difficult to make a "reasonable medical analysis" regarding amitriptyline's precise contribution to Brandon's death. He also stated that making that kind of determination 'really gets to be speculative.' Liberally construing Dr. Bruff's testimony and report in its totality, we conclude the evidence did not establish industrial causation. Rather, the evidence demonstrates that if amitriptyline played a role at all, it was not significant such that it constituted a material factor contributing to Brandon's death."
"Lastly, we note that there is some dispute regarding whether Brandon was taking Ambien due to his industrial injury. Jovelyn testified that Brandon had trouble sleeping before his industrial injury and used Tylenol PM to help him sleep. However, the Tylenol PM was not working. In January 2009, Brandon's personal physician prescribed him Ambien for his sleeping difficulties. The physician noted that Brandon was not experiencing pain during the times he had trouble sleeping. Brandon's medical record indicates that around the same time, he used "pain medication mostly at night to help him get comfortable for sleep." Based on our review of the record, the evidence is insufficient to establish that Brandon used Ambien as a result of pain from his industrial injury."
Accordingly, the order denying reconsideration was annulled and the matter is remanded to the Board with directions to enter a new order denying the claim ...
In July 2009, Brandon died from the combined effects of amitriptyline, gabapentin, Xanax and Ambien, and associated early pneumonia. Brandon's wife, Jovelyn Clark, and their three minor children filed a claim for death benefits alleging the death was the result of the injury and industrially prescribed medications.
The claimant 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. "While there is some difference of opinion on therapeutic and toxic levels of the medications in this particular case, several conclusions can be made. While [Brandon] was prescribed a number of medications only amitriptyline, zolpidem, alprazolam, gabapentin, and acetaminophen were found in peripheral blood specimen. Gastric specimens showed both alprazolam and zolpidem. It is my opinion that gabapentin did not have a role in this particular case. Amitriptyline was prescribed in such low dose, and bloods levels show that the medication was likely taken as prescribed. However, zolpidem [(Ambien)] and alprazolam [(Xanax)] was found in excess of what would be normally considered peripheral blood concentrations. Both these medications work in a similar fashion and would be considered at least additive in their effects. It is my opinion in the case of [Brandon] that it is just this additive effect of zolpidem and alprazolam that caused sedation significant enough to result in the events leading to his death."
"For clarity, it is my opinion that [Brandon] passed away as a result of the additive drug interaction between zolpidem and alprazolam. The two additional medications present in the bloodstream, gabapentin and amitriptyline, were not high enough to result in any coincident drug interaction."
During his deposition Dr. Bruff recognized the limitations of toxicology by noting that mixtures of drugs are difficult to quantify. After repeatedly being pushed to calculate the percentage of amitriptyline's contribution to Brandon's death, Dr. Bruff stressed that no medical person could offer a precise percentage because "it would be closing your eyes and throwing a dart at a dartboard."
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 Court supported the reversal on the following analysis.
"Here, Dr. Bruff admitted that it is difficult to make a "reasonable medical analysis" regarding amitriptyline's precise contribution to Brandon's death. He also stated that making that kind of determination 'really gets to be speculative.' Liberally construing Dr. Bruff's testimony and report in its totality, we conclude the evidence did not establish industrial causation. Rather, the evidence demonstrates that if amitriptyline played a role at all, it was not significant such that it constituted a material factor contributing to Brandon's death."
"Lastly, we note that there is some dispute regarding whether Brandon was taking Ambien due to his industrial injury. Jovelyn testified that Brandon had trouble sleeping before his industrial injury and used Tylenol PM to help him sleep. However, the Tylenol PM was not working. In January 2009, Brandon's personal physician prescribed him Ambien for his sleeping difficulties. The physician noted that Brandon was not experiencing pain during the times he had trouble sleeping. Brandon's medical record indicates that around the same time, he used "pain medication mostly at night to help him get comfortable for sleep." Based on our review of the record, the evidence is insufficient to establish that Brandon used Ambien as a result of pain from his industrial injury."
Accordingly, the order denying reconsideration was annulled and the matter is remanded to the Board with directions to enter a new order denying the claim ...
Two veteran Los Angeles Police Department officers were arrested this week after an investigation by the department’s Workers’ Compensation Fraud Unit. The story in the Daily News claims that investigators working with the Los Angeles County District Attorney’s Office determined that the officers had provided false testimony during depositions related to their industrial injury claims.
One of the police officers who was arrested was Jonathan Hall, a 19-year- old veteran last assigned to the Emergency Services Division. He surrendered Wednesday in response to an arrest warrant listing four felony counts of workers compensation fraud, insurance fraud, grand theft and attempted perjury, police said. Bail for the 45-year-old officer was set at $80,000. He is assigned to home pending the outcome of the criminal and administrative investigators.
Also arrested was Ralph Mendoza, a 13-year veteran, last assigned to the Hollenbeck Division patrol. He surrendered on an arrest warrant listing two felony counts of workers’ compensation fraud and grand theft. Mendoza, 44, who lives in San Bernardino County, was held on $40,000 bail. He has been relieved of duty pending the outcome of an investigation.
"Public trust is at the very core of the police profession, and when that trust is violated we must employ every measure to restore it," said LAPD Chief Charlie Beck. "I am troubled whenever our officers are accused of violating that trust. As the chief, it is my duty to ensure that we fully investigate these cases of alleged misconduct and to take appropriate action when the misconduct is found to be true."
Anyone with information related to this or any other case was asked to call the LAPD’s Special Operations Division at (213) 473-5672 ...
One of the police officers who was arrested was Jonathan Hall, a 19-year- old veteran last assigned to the Emergency Services Division. He surrendered Wednesday in response to an arrest warrant listing four felony counts of workers compensation fraud, insurance fraud, grand theft and attempted perjury, police said. Bail for the 45-year-old officer was set at $80,000. He is assigned to home pending the outcome of the criminal and administrative investigators.
Also arrested was Ralph Mendoza, a 13-year veteran, last assigned to the Hollenbeck Division patrol. He surrendered on an arrest warrant listing two felony counts of workers’ compensation fraud and grand theft. Mendoza, 44, who lives in San Bernardino County, was held on $40,000 bail. He has been relieved of duty pending the outcome of an investigation.
"Public trust is at the very core of the police profession, and when that trust is violated we must employ every measure to restore it," said LAPD Chief Charlie Beck. "I am troubled whenever our officers are accused of violating that trust. As the chief, it is my duty to ensure that we fully investigate these cases of alleged misconduct and to take appropriate action when the misconduct is found to be true."
Anyone with information related to this or any other case was asked to call the LAPD’s Special Operations Division at (213) 473-5672 ...
The PACER information on the Angelotti Chirporactic case reflects that the plaintiffs have appealed to the 9th Circuit Court of Appeals with respect to the two (of the three) causes of actions that were dismissed. The transcripts are being prepared. Surprisingly, there not yet any effort on behalf of the DWC to appeal the adverse ruling on the one cause of action that was favorable to the lien claimants. Plaintiffs are far more responsive and aggressive in the litigation thus far than is the DWC.
With respect to the hearing in December, here is the current docket entry. "The Court, on its own motion, CONTINUES the Status Conference previously scheduled for 12/23/2013 to 1/16/2014 at 08:30 AM before Judge George H. Wu."
Thus the December 23 hearing will now take place on January 16. Nothing earth shattering will take place at a status conference. It operates much as it is named, except you must file a status documentation ahead of time. At the status conference, Judge Wu will remove frivolous planned activities, and cut to the chase. Essentially, there is likely no need for an evidentiary trial, as there is no significant factual dispute. If there is a factual dispute, Wu will likely order the parties to take depositions, or get affidavits of any potential witness, and will ultimately gear this case up for decision by way of summary judgment.
Thus, either at this status conference, or the next, the conclusion will likely be that there is nothing left to do to decide the case, and that the decision can be accomplished by way of summary judgment, and the case will simply be submitted
Meanwhile the dismissal of two of the three causes of action will be argued before the 9th Circuit Court of Appeals, It is not yet clear if the DWC will appeal the rruling granting a preliminary injunction precluding enforcement of the lien activation fee in January ...
With respect to the hearing in December, here is the current docket entry. "The Court, on its own motion, CONTINUES the Status Conference previously scheduled for 12/23/2013 to 1/16/2014 at 08:30 AM before Judge George H. Wu."
Thus the December 23 hearing will now take place on January 16. Nothing earth shattering will take place at a status conference. It operates much as it is named, except you must file a status documentation ahead of time. At the status conference, Judge Wu will remove frivolous planned activities, and cut to the chase. Essentially, there is likely no need for an evidentiary trial, as there is no significant factual dispute. If there is a factual dispute, Wu will likely order the parties to take depositions, or get affidavits of any potential witness, and will ultimately gear this case up for decision by way of summary judgment.
Thus, either at this status conference, or the next, the conclusion will likely be that there is nothing left to do to decide the case, and that the decision can be accomplished by way of summary judgment, and the case will simply be submitted
Meanwhile the dismissal of two of the three causes of action will be argued before the 9th Circuit Court of Appeals, It is not yet clear if the DWC will appeal the rruling granting a preliminary injunction precluding enforcement of the lien activation fee in January ...
A small but growing number of physicians are not accepting government insurance, such as Medicare and Medicaid, and are even refusing to accept patients’ private insurance, according to Dr. Jane Orient, executive director of the American Association of Physicians and Surgeons (AAPS). Orient says the transition to a business model in which patients agree to pay doctors directly for the health care services they provide started before Obamacare was passed, but that the new law has accelerated the trend, especially among AAPS’ 4,000 or so members. AAPS is the conservative alternative to the much larger American Medical Association (AMA), which endorsed Obamacare while AAPS opposed it.
"They like the freedom," Orient, a Tucson-based internist, told CNSNews.com. "They don’t like third parties telling them why they can’t do what’s best for their patients. They’re tired of the constant threats of audits and prosecution, and they don’t like being owed money by government programs and many insurance programs. But the biggest complaint I hear is that they are tired of fighting people who don’t have a clue, and don’t even know how to spell the procedure they want to perform," Orient added."It just devours time and sometimes puts the patient’s life at risk."
Some physicians never signed up with managed care insurance plans in the first place because the reimbursement levels didn’t cover their costs, she said. But now even doctors who "agreed to accept the crumbs, whatever compensation the government or the insurance companies decide to send them," are having second thoughts as the costs of practicing medicine continues to climb and government regulations become even more onerous. "I get several calls a week from doctors seeking advice on how to opt out," Orient told CNSNews.com. "They tell me that they either have to go out of business or go back to the old-fashioned practice of charging for their services."
At least 100 physicians attend workshops and seminars AAPS sponsors twice a year on the subject. Former AAPS president Dr. Juliette Madrigal-Dersch, who started her cash-only practice in Texas 11 years ago, tells fellow physicians that she has more time and flexibility to spend with patients and is actually better compensated for it, even after offering a discount for "teachers and preachers" and free care for cancer patients. "I see billionaires and migrant workers, and everybody gets the same care," she says. She charges $15 for a CBC (complete blood count), while the tax-subsidized "charity hospital" down the street charges $79. Medicare reimbursement is just $3.50 for the same test.
Madrigal-Dersch says that by not having to deal with third-party payers, she is able to establish "a true doctor-patient relationship," enabling her to provide better care. For example, she says one of her patients would probably have died waiting for the Veteran’s Administration to approve an MRI for her brain tumor.
Doctors who stop accepting insurance typically lose patients and experience a drop in income, Orient said. Some never recover the revenue, but because they don’t have to pay people to process insurance claims, their overhead costs also decrease. "Before too long, they often find the move very positive financially as well as professionally because they are working less and making more money," she pointed out ...
"They like the freedom," Orient, a Tucson-based internist, told CNSNews.com. "They don’t like third parties telling them why they can’t do what’s best for their patients. They’re tired of the constant threats of audits and prosecution, and they don’t like being owed money by government programs and many insurance programs. But the biggest complaint I hear is that they are tired of fighting people who don’t have a clue, and don’t even know how to spell the procedure they want to perform," Orient added."It just devours time and sometimes puts the patient’s life at risk."
Some physicians never signed up with managed care insurance plans in the first place because the reimbursement levels didn’t cover their costs, she said. But now even doctors who "agreed to accept the crumbs, whatever compensation the government or the insurance companies decide to send them," are having second thoughts as the costs of practicing medicine continues to climb and government regulations become even more onerous. "I get several calls a week from doctors seeking advice on how to opt out," Orient told CNSNews.com. "They tell me that they either have to go out of business or go back to the old-fashioned practice of charging for their services."
At least 100 physicians attend workshops and seminars AAPS sponsors twice a year on the subject. Former AAPS president Dr. Juliette Madrigal-Dersch, who started her cash-only practice in Texas 11 years ago, tells fellow physicians that she has more time and flexibility to spend with patients and is actually better compensated for it, even after offering a discount for "teachers and preachers" and free care for cancer patients. "I see billionaires and migrant workers, and everybody gets the same care," she says. She charges $15 for a CBC (complete blood count), while the tax-subsidized "charity hospital" down the street charges $79. Medicare reimbursement is just $3.50 for the same test.
Madrigal-Dersch says that by not having to deal with third-party payers, she is able to establish "a true doctor-patient relationship," enabling her to provide better care. For example, she says one of her patients would probably have died waiting for the Veteran’s Administration to approve an MRI for her brain tumor.
Doctors who stop accepting insurance typically lose patients and experience a drop in income, Orient said. Some never recover the revenue, but because they don’t have to pay people to process insurance claims, their overhead costs also decrease. "Before too long, they often find the move very positive financially as well as professionally because they are working less and making more money," she pointed out ...
