The Department of Industrial Relations’ (DIR) Division of Workers’ Compensation (DWC) is seeking public input on payment ground rule topics as it moves forward with developing a Resource Based Relative Value Scale (RBRVS).

Senate Bill 863 directs DWC’s administrative director to adopt a physician fee schedule based upon the federal RBRVS used in the Medicare payment system. In the RBRVS-based system, relative value units interact with payment ground rules and the conversion factor to determine the maximum fee in light of the resources to provide the service. SB 863 provides that the physician fee schedule shall include payment ground rules that differ from Medicare, including, as appropriate, payment of consultation codes as well as payment of evaluation and management services provided during a global period of surgery. The division is seeking public input on which ground rules should differ from Medicare in the new fee schedule and why.

The forum can be found by clicking the "current forums" link on the top of the DWC forums page.

Comments will be accepted at the forum through Feb. 8, 2013. Please feel free to participate in this important process ...

Applicant played professional football for four years with the Arizona Cardinals (Cardinals) from 1999 to June 24, 2003. The Cardinals are a National Football League (NFL) team based in Arizona, where the players regularly train and practice for games. During the four years applicant was employed by the Cardinals, the team played a total of 80 games; 40 of them in Arizona and the remainder in 16 other states, including 7 games in California.

In the summer of 2010 he heard from another former NFL player, Michael Jameson, that he could file a workers’ compensation claim of cumulative industrial injury in California and he filed an Application for Adjudication of Claim, alleging that he incurred industrial injury to multiple body parts as a result of "cumulative injury" incurred while playing and practicing for the Cardinals during the four year period ending in 2003.

The Cardinals contend that the California Workers’ Compensation Appeals Board (WCAB) should decline to hear applicant’s workers’ compensation claim because each of the three employment contracts he signed with the Cardinals contains an identical forum selection clause that said "This Contract has been entered into in the State of Arizona and in no other state, and the parties acknowledge that the Player’s principal place of employment shall be within the State of Arizona and in no other state. Claims for workers’ compensation shall be filed with the Industrial Commission of Arizona, and the parties agree that they shall be subject to the workers’ compensation laws of the State of Arizona and of no other state."

The WCJ found that the WCAB "has jurisdiction over applicant’s claim," but that "Applicant’s contacts with California are not sufficient to warrant exercising the Board’s jurisdiction in light of applicant’s contractual agreement with his employer to file his workers’ compensation claims in Arizona." Based upon those findings the WCJ further ordered that applicant "take nothing" on his claim for California workers’ compensation benefits, which is tantamount to dismissal of the claim. The WCAB affirmed the decision in the En Banc decision of Dennis McKinley v Arizona Cardinals: The Travelers Indemnity Company.

Under applicant’s theory that each and every game in which he played contributed to the injurious exposure that caused his claimed cumulative injury, at least 16 other states besides California could have concurrent jurisdiction over the claim for workers’ compensation. In that there are 16 other states that could potentially exercise jurisdiction over applicant’s cumulative injury claim for workers’ compensation, the WCAB carefully considered whether that claim is properly adjudicated in California. The answer to that question also implicates the exclusive remedy aspect of workers’ compensation that is part of California law and the similar laws of most states. In view of this limited connection with California, and in light of the Arizona forum that applicant and the Cardinals reasonably identified in their employment contracts, the WCAB decline to exercise jurisdiction over his claim for workers’ compensation.

Applicant’s primary connection during his four years of employment by the Cardinals was with the State of Arizona. The Cardinals’ home base is in Arizona and that is where the team is headquartered. Applicant regularly trained and practiced at the team’s facility in Tempe, Arizona, and he spent the substantial majority of his work time in that state. By contrast, applicant was not a resident of California when he contracted to play football for the Cardinals and his contracts of employment were made in Arizona. The majority of applicant’s work duties were performed in Arizona where he regularly practiced and where the Cardinals played 40 of their 80 games during the period of his employment. In addition, 33 of the other 40 games were played in states other than California. In short, there was limited connection with California with regard to applicant’s employment by the Cardinals and his claimed cumulative injury. In the view, of the WCAB, that limited connection is insufficient for the WCAB to exercise jurisdiction over his claim for workers’ compensation in derogation of the Arizona forum he and the Cardinals reasonably identified in their employment contracts as the place where any claim for workers’ compensation would be filed.

Applicant argues that because he paid California income tax for games that were played in the state he has a due process right to have his workers’ compensation claim adjudicated by the WCAB. However no authority holds that payment of state income tax requires the WCAB to adjudicate an employee’s claim for workers’ compensation, and tax law does not control how California’s system of workers’ compensation is administered, given the very different purposes of those laws.

With respect to public policy issues raised by the applicant, the WCAB concluded "In the special circumstances of this case, we conclude that California has a stronger public policy interest in following the parties’ forum selection clause than it does in exercising jurisdiction over applicant’s claim for workers’ compensation."

The WCAB concluded "our concern about court congestion and the overburdening of already strained judicial resources is not based upon abstract speculation. The NFL consists of 32 teams playing in 23 states and occasionally in foreign countries. Each club is allowed a maximum of 53 players on their roster. Because three NFL teams are domiciled in California, players from all of the 29 other teams could potentially claim that they incurred some portion of a cumulative industrial injury in California merely because they played one or more games in the state. In fact, numerous claims have been filed in California by professional football players and other professional athletes, and those claims impose a substantial burden on the WCAB’s limited resources." ...

The Division of Workers’ Compensation (DWC) has scheduled a public meeting to discuss the issues related to drafting regulations regarding the SB 863 changes to medical provider networks. The meeting will be held: on Wednesday, Jan. 30, 2013 from 10 a.m. to noon at the Elihu Harris State Office Building Auditorium located at 1515 Clay Street in Oakland.

This is the first opportunity for the public to provide input to the Division on regulations to implement MPN changes under SB 863. Specifically, the following issues will be addressed:

• New MPN applicants
• Reapproval process
• Petition process for MPN suspension/revocation
• Administrative penalties
• MPN audits/investigations
• Independent Medical Review (IMR) process

...

As debate swirls about future funding for California's $3.7 million a year Controlled Substance Utilization Review and Evaluation System (CURES), a new California Workers' Compensation Institute study asserts that allowing 3rd party payer access to CURES would improve quality of care and strengthen utilization and cost control over opioid prescriptions dispensed to injured workers, which for accident year 2011 claims alone would cut California workers' compensation claim costs by an estimated $57.2 million

Excessive use of prescription painkillers has become a nationwide public health problem, and a huge cost driver in California workers' compensation, where highly addictive "Schedule-II" narcotics such as oxycontin and fentanyl have been widely used, even for relatively minor sprain and strain injuries. In 2011, the Division of Workers' Compensation adopted chronic pain management guidelines to help control the use of these drugs to treat injured workers, but they have continued to account for a growing proportion of workers' compensation prescriptions. One tool California does have to combat prescription drug abuse is CURES, its 3-year old electronic prescription monitoring program run by the Department of Justice. CURES allows doctors, pharmacists and law enforcement to track the prescription history of patients receiving opioids to identify fraud and abuse patterns. Many workers' compensation stakeholders assert that access to CURES data, coupled with enhanced medical cost containment strategies (including pharmacy benefit managers, medical provider network monitoring and utilization review) could significantly reduce inappropriate opioid prescriptions dispensed to injured workers. However, since a $70 million cut in the Department of Justice budget was announced in late 2011, the state has struggled to come up with the $3.7 million a year needed to fund CURES.

Using data from prior studies and CWCI's Industry Claims Information System database, authors Alex Swedlow and John Ireland estimate that 23 percent of the 500,000 California job injury claims in accident year 2011 involved opioid prescriptions. Though the Institute projects that access to CURES would generate no savings on the 41 percent of workers' compensation opioid claims involving a single prescription, potential savings from reduced medical and indemnity payments on the 59 percent of the opioid claims involving multiple prescriptions would range between 3 to 7 percent - or $57.2 million on the accident year 2011 claims.

Debate over the funding of CURES continues, as Attorney General Kamala Harris this week urged Governor Brown to restore funding for the program in light of the state's improving budget picture. In the meantime, the Institute has released its analysis in a white paper, "Estimated Savings from Enhanced Opioid Management Controls Through Third Party Payer Access to CURES." The white paper is available in the Research section of the Institute's website, www.cwci.org ...

The San Bernardino County District Attorney reports that Jose Cortez, 54, of Fontana, has been charged with workers’ compensation fraud and perjury.

In Oct. 2010, Cortez received an occupational injury as a result of his duties as a gardener for L. Barrios and Associates Landscaping. A large tree branch had fallen and landed on Cortez causing injury. He was then transported to an area hospital where he was treated under the workers’ compensation system and released with minor work restrictions.

The following year - between April and Sept. 2011 - private insurance investigators working on a tip began conducting video surveillance of Cortez. On six different occasions, he was observed performing his normal duties as a gardener with no obvious signs of pain or discomfort.

In Sept. 2012 Investigators from the San Bernardino County District Attorney’s Office Workers’ Compensation Insurance Fraud Unit conducted a thorough criminal investigation. During the surveillance they observed and photographed Cortez performing his normal duties as a gardener with no obvious signs of pain or discomfort; however, Cortez was still collecting insurance benefits after reporting that he could not perform his work-related duties.

"Mr. Cortez had previously stated that he was unable to perform the full range of his duties," said Deputy District Attorney Scott Byrd, who is assigned to the case. "However, our investigation revealed that he had misrepresented the extent of his injuries and received more compensation than he was entitled to."

Criminal charges were filed Monday against Cortez, resulting in a felony arrest warrant being issued. Cortez was taken into custody outside his residence without incident by District Attorney Investigators. He was transported and booked at the San Bernardino County Sheriff’s West Valley Detention Center. Cortez was arraigned Tuesday in San Bernardino Superior Court, where he entered a plea of not guilty. If convicted as charged, he faces eight years in County Prison.

"This type of fraud is harmful because it causes premiums that businesses have to pay to go higher," said Byrd. "It drains business profits, which in turn costs honest workers money in raises or other benefits that they may have been eligible to receive." ...

Two administrators pleaded guilty Friday to 101 fraud and other charges related to a case that prosecutors say was the largest medical-fraud operation in the nation, while three others charged are expected to go to trial later this year.

According to the report in the Orange County Register, four of the five defendants, office workers at a Buena Park surgical outpatient center, including an attorney, already were tried and convicted in Superior Court Judge Thomas Goethals court in November after a 10-week trial on charges either of filing false tax returns or failing to file taxes or both. A doctor, also charged in the case, has not been tried yet.

The four defendants already prosecuted in the first phase of their cases were personnel connected to Unity Surgical Outpatient Center, where healthy people from all over the United States were recruited for unneeded surgeries, including tummy tucks and hysterectomies, generating $154 million in billings to insurance companies.

When Goethals sentenced the four in December to prison terms on the tax-evasion convictions and ordered them to pay millions in restitution in the first phase of the case, he also told them he would add no additional time to their sentences if they plead guilty to the fraud counts.

The judge said then he felt the tax convictions and the fraud charges were all part of the same "ugly, expensive ... felonious scenario."

Administrators Rosalinda Landon, 66, who received five years and four months on the tax counts, and Dee Francis, 63, who was sentenced to six years in prison on tax charges, accepted the judge's offer. Unity accountant Andrew Harnen, 58, received the same term as Landon, and lawyer Roy Dickson, 64, got two years and eight months. All four defendants were ordered to pay restitution, ranging from $41,000 to $1.1 million. Harnen and Dickson, each facing more than 100 counts, including insurance fraud and grand theft, did not take the judge's offer and will to go to trial later this year.

The case is expected to last more than six months, which would make it one of the longest criminal trials in Orange County. If convicted on those counts, the two face more than 55 years in prison.

Orange County prosecutors William Overtoom and George McFetridge have said that Unity doctors performed 1,307 invasive procedures on patients, including some who were recruited and paid between $300 and $1,000 to undergo unnecessary colonoscopies, hysterectomies, the removal of cysts, and treatment of sweaty palms and hemorrhoids.

The prosecutors say Unity billed insurance companies $154 million in a scheme in which 2,841 healthy people from all over the country were recruited for the unneeded surgeries ...

Patients and their families are rarely told when hospitals make mistakes with their medicines, according to a new study. Most medication mistakes did not harm patients, the researchers found, but those that did were more likely to happen in intensive care units (ICUs). And ICU patients and families were less likely to be told about errors than patients in other hospital units. "For the most part, our findings were in keeping with what the existing literature tells us about the where and how of medication errors in a hospital," wrote Dr. Asad Latif, the study's lead author, in an email to Reuters Health. "The most surprising finding was what we do about them, at least in the immediate time around when they occur," added Latif, from the Johns Hopkins University School of Medicine in Baltimore.

The summary in Reuters Health say that using a database of about 840,000 voluntarily reported medication errors from 537 U.S. hospitals between 1999 and 2005, the researchers found that ICUs accounted for about 56,000, or 6.6 percent, of the errors. The rest happened in non-ICU units of the hospital. The vast majority of the mistakes - about 98 percent - didn't lead to a patient being harmed, but those that did were more likely to happen in the ICUs, the researchers reported in Critical Care Medicine.

About four percent of the errors in ICUs ended up harming a patient, compared with about two percent of errors in non-ICU wards. That's not surprising given the fragile condition of ICU patients and the more intensive treatment they receive, the authors note. Of errors that may have led to patient deaths, 18 occurred in ICUs and 92 in non-ICU areas of the hospital. In ICUs and non-ICUs, errors of omission - failing to give a patient the medication - were most common. Harmful errors most often involved devices like IV lines and mistakes in calculating medication dosages. More than half of the time, no actions were taken after an error. In fact, only a third of the hospital staff who made the reported mistakes were immediately told about their errors.

"And the patient and/or their family is immediately informed when an error occurs barely two percent of the time, despite literature supporting full disclosure and their desire to be promptly informed," Latif said. Still, Latif said it would be premature for patients and their families to be concerned based just on their findings. "Studies like this give us the opportunity to find out how we are actually doing, compared to how we think we are doing," he said. "They help us discover associations between the outcomes we are interested in and their potential causes and consequences."

Recent research has found that instituting a blame-free reporting system in hospitals increases the number of reported mistakes. According to the new paper, one prior study demonstrated that medication errors can add an extra $2.8 million in costs at a single hospital. Latif added that the healthcare system is always trying to reduce medication mistakes. "However nothing is fool-proof as we show in our study; there is always the human factor to take into account. The key is what we do if they do happen and to keep striving for perfection," Latif said ...

To usher in the New Year, Congress passed H.R. 1845, which contains, in part, the bipartisan Strengthening Medicare and Repaying Taxpayers ("SMART") Act. The SMART Act, as adopted, amends several portions of the Medicare Secondary Payer ("MSP") statute and aims to simplify and soften portions of the statute that have been burdensome to beneficiaries and industry stakeholders. This legislation has now been signed into law by President Obama. Notably, the beneficial provisions of the SMART Act apply only to non-group health plans (i.e., workers’ compensation, no-fault and liability insurance (including self-insurance) plans) and not to employer group health plans.

According to a summary prepared by the Association Corporate Counsel, "conditional" payments occur where Medicare pays for items or services that are later determined to be the financial responsibility of a group health plan or non-group health plan (each a "primary plan"). In the non-group health plan context, the Centers for Medicare and Medicaid Services ("CMS") can seek to recover medical costs associated with the illness, injury or incident giving rise to the claim from the non-group health plan or from Medicare beneficiaries or others who receive settlement proceeds. In practice, most demand letters associated with liability settlements are sent to Medicare beneficiaries.

Under current CMS policy, CMS does not issue a "final" conditional payment determination amount until after settlement. Although preliminary information concerning conditional Medicare payments can be obtained prior to settlement, the dispute resolution process post-settlement regarding the appropriate amount can be lengthy and complicated. This has been a source of considerable frustration for Medicare beneficiaries. Further, CMS’ refusal to provide a final conditional payment amount prior to settlement creates additional risk for non-group health plans because CMS can recover Medicare conditional payments from a primary plan for injury related medical care notwithstanding the fact that the plan has already paid the claim and obtained a release for such medical care. Not knowing the final conditional payment amount prior to settlement impedes the non-group health plan’s ability to directly satisfy Medicare’s interests (e.g., by sending one check to Medicare and another to the claimant) because payment of settlement proceeds must generally be made promptly after settlement. This has lead liability insurance and other plans to seek work around release provisions designed to ensure that Medicare’s interests are, in fact, satisfied, adding to the complexities (and timeframes) for settlement.

The SMART Act addresses these concerns by requiring that CMS make a "statement of reimbursement" available to the Medicare beneficiary, his or her authorized representatives, and/or the non-group health plan with the beneficiary consent’s on a secure website prior to settlement of a non-group health plan claim. The settling parties can rely upon the statement as the final agency determination of Medicare conditional payments where certain conditions are met. This will allow the parties to factor the final "lien" amount into their settlement negotiations and allow primary plans to implement more direct and effective strategies for ensuring satisfaction of Medicare’s recovery rights (such as issuing separate checks to the beneficiary and Medicare). The statute imposes specific procedures around the statement of reimbursement process, including timelines for notice to the government in advance of an expected settlement and timelines for CMS’ response. CMS must promulgate final regulations to implement this process within nine months after the SMART Act enactment.

Many stakeholders have expressed concern over the slow and cumbersome process available for beneficiaries who wish to dispute costs that a CMS contractor identifies as Medicare conditional payments on the basis that such costs are not related to the illness, injury or incident at issue. The SMART Act requires that the Secretary provide Medicare beneficiaries and their authorized representatives a "timely process to resolve the discrepancy." Specifically, if the individual or representative provides documentation explaining the discrepancy and offering a proposal to resolve it, CMS must, in turn, determine whether there is a reasonable basis to include or exclude the claims at issue in the Medicare conditional payment amount within 11 business days after receipt of the document. Additional processes for resolution are specified. The statute does not allow any administrative or judicial review of the Secretary’s determinations under this new process. However, Medicare beneficiaries still would retain the ability, as under current law, to exercise formal administrative or judicial appeals to contest final conditional payment demands from CMS. The Secretary also must promulgate implementing regulations concerning these processes within nine months of enactment.

Under current MSP law, "Responsible Reporting Entities" are required to determine whether a claimant is a Medicare beneficiary and, if so, submit certain detailed information to CMS. An RRE that fails to report the claimant’s information, as required, "shall be subject to a civil monetary penalty of $1,000 for each day of non-compliance with respect to each claimant," with no exception for good faith efforts to obtain the information. While CMS has yet to publish implementing regulations or, to our knowledge, impose any such penalty, the potential financial risk to RREs is substantial. The SMART Act modifies the statutory language to provide that an RRE "may be subject to a civil money penalty of up to $1,000 for each day of noncompliance" per claimant. Moreover, and equally important, the SMART Act requires the Secretary to publish notice within sixty days of enactment soliciting proposals on practices that will and will not be subject to sanctions for non-reporting, including not imposing sanctions for good faith efforts to identify beneficiaries, and thereafter issue final rules regarding such practices ...

The California Workers' Compensation Institute has released the sixth edition of its "Injury Scorecard" research series, providing detailed data on accident year (AY) 2001 to 2011 workers' compensation claims experience for cases in which the primary diagnosis was carpal tunnel syndrome. The new Scorecard is based on data from 19,899 California open and closed job injury claims for carpal tunnel syndrome that through December 2011 resulted in total payments of $738 million. The Scorecard shows that over the 11-year span of the study, carpal tunnel claims accounted for less than 1% of California job injury claims, but 2.4% of all paid losses.

More than 60% of carpal tunnel claims come from the professional/clerical, manufacturing, and mercantile sectors, though since 2008, the highest growth rate of carpal tunnel claims has been among hospital workers, who accounted for nearly 14% of the claims since 2008, up from 6.3% in the prior five years. More than half of the carpal tunnel claims over the past decade have resulted in permanent disability (PD) - more than triple the rate for all job injury claims, and these PD cases account for nearly 89 cents out of every dollar paid on carpal tunnel claims. Since 2001, the average claim duration for carpal tunnel claims has been nearly 31 months from the claim filing date to claim closure - nearly triple the average of 10.8 months for all other work injury claims - and for carpal tunnel PD cases, the average duration has been nearly 4 years (1,406 days), or about 5 months longer than the average for PD cases involving other types of injuries. The Score Card notes a number of factors that may contribute to the longer claim durations in carpal tunnel cases including uncertainty and disputes over the cause and nature of the injury; notification and initial treatment delays; high levels of attorney involvement; the high incidence of lost time claims (especially PD claims), and treatment plans that often involve surgery followed by physical therapy and delayed return to work. As a result, average payments on carpal tunnel claims have consistently exceeded the average for all claims at 12, 24 and 36 months post injury. For example, for accident year 2007-2009 lost time claims, total benefit payments for carpal tunnel cases at 36 months post-injury averaged $35,129 ($16,980 medical + $18,149 indemnity); 20% more than the average of $29,211 ($15,646 medical + $13,565 indemnity) paid for all California workers' compensation lost time claims.

The Score Card also features a profile of injured workers with carpal tunnel syndrome, as well as claim distributions by industry sector, injured worker county of residence, and nature and cause of injury. In addition, several Score Card exhibits compare the results for carpal tunnel claims to those for all California workers' compensation claims (these include the exhibits showing the percentage of claims with PD payments within 3 years of injury; the attorney involvement data; the claim closure data; the prescription drug distributions; the breakdowns of medical development by Fee Schedule Section at 12 and 24 months post injury; the notice and treatment time lags; the medical network utilization rates; and the 12-, 24- and 36-month loss development).

CWCI Industry Score Cards and summary Bulletins are available to CWCI members and research subscribers on CWCI's web site, http://www.cwci.org/. Anyone wishing to subscribe may do so by going to CWCI's online Store. The next Score Card in the series will focus on "Other Injuries, Poisonings and Toxic Effects." ...

Tampa, Florida-based CompPharma is a consortium of pharmacy benefit managers. It's 9th annual survey report, titled "Prescription Drug Management in Workers' Compensation" states that claims "payers have gotten the message: narcotics are highly problematic for workers' comp claimants, employers and insurers." The new survey confirms that addiction to opioid pain medications and the dispensing of drugs by doctors remain top concerns for workers' compensation companies. The report relies on survey responses from insurers, third-party administrators, and employers with prescription expenses totaling nearly $475 million.

Concern over the long-term implications of prescribing narcotic pain medications to injured workers has grown during the past two years with respondents to this year's survey conducted by CompPharma L.L.C. saying the issue remains "very significant."

Despite relatively flat drug costs, respondents continue to be significantly concerned about the issue. In response to the question "How big a problem are drug costs?" on a 1 through 5 scale with 3 being "drug costs are equally as important as other medical cost issues," drug costs were rated a 4.1, or "more important than other medical cost issues." This was three-tenths of a point higher than last year’s results (3.8). Moreover, respondents are concerned (4.2) that drug costs will be more of a problem in the next 12-24 months than they are today.

And consistent with results from last year, respondents judged opioids to be a very significant problem, giving it an average of 4.8, identical to responses in the 2011 survey. This is the highest score for any survey question in the history of the survey, and a clear indicator of the level of the industry’s anxiety over a problem it has yet to fully understand, much less address.

The concern over physician dispensing has grown over the last few years, driven by payers’ own experience and the research from NCCI and WCRI quantifying the dramatic increase in the percentage of drug dollars going to pay for physician-dispensed medications.

In 2010, many responses noted newly implemented programs or steps designed to address opioid use. In 2011, implementing and upgrading those programs was the most common change to respondents’ pharmacy management programs.

Half of all respondents utilized a "urine drug-testing program to monitor claimant compliance." Among those who did not answer in the affirmative were payers that operated in states where they could not require UDT, although they did encourage or recommend testing whenever possible. Others did not have "formal" programs but did reimburse for UDT and were in the process of setting up a program, or were discussing a program with their PBM. There is a clear indication that this tool is growing in popularity.

Pharmacy management in workers’ comp has evolved dramatically over the nine years that surveys have been taken. From a focus on the price of the pill and the size of the retail pharmacy network in 2003 to today’s concern about opioids, physician dispensing and clinical management, there has been a remarkable increase in sophistication and understanding. With that said, it is evident that despite all the attention paid to and resources focused on this issue, payers’ level of concern about pharmacy management continues to remain quite high ...

A fugitive convicted in a $1-million health-care fraud scheme in California was arrested in Canada. Police said Leonard Nwafor was detained on an extradition warrant at his Toronto residence. The U.S. Marshals Service contacted Toronto authorities in August to seek their help in finding Nwafor and issued the extradition warrant last month.

Nwafor fled California after the conviction. In 2010, he was sentenced in absentia to nine years in prison and ordered to pay more than $500,000 in restitution and $25,000 in fines. He was also ordered to forfeit more than $500,000 in stolen funds to the U.S. government.

Authorities believe he had been living in Canada since he fled. Nwafor was also wanted by the U.S. Postal Inspection Service, which had placed him among its 10 most-wanted fugitives. The agency charges that Nwafor opened fraudulent credit card accounts in Arizona and used the cards in Southern California.

Nwafor was convicted at trial in September 2008 of conspiracy to commit health care fraud and health care fraud. At trial, evidence established that Nwafor, through his company, Pacific City Group Inc., aka Pacific City Medical Equipment, submitted $1,109,438 in fraudulent claims to Medicare. As a result of the fraudulent claims, Nwafor received $526,243 in payments from Medicare. The evidence presented at trial showed that almost all the claims Nwafor submitted to Medicare were for expensive, high-end power wheelchairs and wheelchair accessories that were not needed by the beneficiaries.

Elderly and disabled Medicare beneficiaries testified that individuals known as "marketers" approached them on the street, at home or in church and encouraged the beneficiaries to give the marketers their Medicare numbers and other personal information in exchange for free power wheelchairs. Evidence presented at trial established that Nwafor billed Medicare for power wheelchairs on behalf of more than 170 beneficiaries, none of whom actually needed the wheelchairs. The power wheelchairs Nwafor claimed Pacific City provided to the beneficiaries can be billed to Medicare for up to $7,000 each.

The evidence also showed that Nwafor supplied power wheelchairs to beneficiaries who were not able to use the chairs. One beneficiary, who was blind, testified that he could not see to operate the wheelchair and never used it. The same beneficiary also testified that a delivery driver working for Nwafor and the delivery driver’s girlfriend paid him $200 to refer them to other Medicare beneficiaries.

Another beneficiary testified about the aggressive techniques marketers used to recruit her and her husband into the fraudulent scheme. This beneficiary testified that an individual purporting to be from Medicare, but who was actually associated with Nwafor and his co-conspirators, threatened to terminate the Medicare benefits of the beneficiary and her husband unless they accepted two power wheelchairs that the beneficiary and her husband did not need.

The evidence at trial included testimony from Los Angeles-area physicians whose names appeared on prescriptions Nwafor used to support his false claims to Medicare. One of these physicians, a psychiatrist, testified that he does not prescribe power wheelchairs as part of his practice, and had never written a prescription for one. Other physicians testified that the prescriptions bearing their names were phony and that their handwriting was not on any of the prescriptions.

After his conviction, Nwafor admitted in documents he filed with the court that he purchased the prescriptions and documents he used to support his false claims to Medicare from a co-conspirator for approximately $1,300 per prescription. One of Nwafor’s co-conspirators, Ajibola Sadiqr, admitted that he purchased fraudulent prescriptions and documents from Nwafor to perpetrate his own fraudulent power wheelchair Medicare fraud scheme. Sadiqr pleaded guilty and is scheduled to be sentenced on April 12, 2010 ...

Scientists have long searched for a method to objectively measure pain and a new study from Brigham and Women's Hospital advances that effort. The study appears in the January 2013 print edition of the journal Pain.

Specifically, researchers studied 16 adults with chronic back pain and 16 adults without pain and used a brain imaging technique called arterial spin labeling to examine patterns of brain connectivity (that is, to examine how different brain regions interact, or "talk to each other"). They found that when a patient moved in a way that increased their back pain, a network of brain regions called Default Mode Network exhibited changes in its connections. Regions within the network (such as the medial prefrontal cortex) became less connected with the rest of the network, whereas regions outside network (such as the insula) became connected with this network. Some of these observations have been noted in previous studies of fibromyalgia patients, which suggests these changes in brain connectivity might reflect a general feature of chronic pain, possibly common to different patient populations.

"This is the first study using arterial spin labeling to show common networking properties of the brain are affected by chronic pain," said study author Ajay Wasan, MD, MSc, Director of the Section of Clinical Pain Research at BWH. "This novel research supports the use of arterial spin labeling as a tool to evaluate how the brain encodes and is affected by clinical pain, and the use of resting default mode network connectivity as a potential neuroimaging biomarker for chronic pain perception."

"While we need to be cautious in the interpretation of our results, this has the potential to be an exciting discovery for anyone who suffers from chronic pain," said Marco Loggia, PhD, the lead author of the study and a researcher in the Pain Management Center at BWH and the Department of Radiology at Massachusetts General Hospital. "We showed that specific brain patterns appear to track the severity of pain reported by patients, and can predict who is more likely to experience a worsening of chronic back pain while performing maneuvers designed to induce pain. If further research shows this metric is reliable, this is a step toward developing an objective scale for measuring pain in humans." ...

On January 4, 2013, Investigators from the Office of the District Attorney, County of Tulare arrested Michael D. Maloney, age 52, of Porterville. Maloney was wanted for allegedly filing a fraudulent workers’ compensation claim.

Maloney was arrested on a $10,000.00 bail felony warrant and was subsequently booked into the jail at the Tulare County Sheriff’s Office, Porterville Sub Station. He was later transferred to the Main Jail without further incident.

Maloney was employed by the County of Tulare, Resource Management Agency assigned to Yard 5 in Terra Bella, as a heavy equipment operator. The total alleged loss to date is about $25,184.66.

Investigators from the Office of the District Attorney will continue investigating all allegations of Workers’ Compensation Fraud and additional arrests are pending ...

The U.S. government launched a sweeping study of rising sports-related concussions amid concerns that the injuries may have contributed to the suicides of professional football players.

Returs Health reports that the Institute of Medicine, part of the National Academies of Science, will probe sports-related concussions in young people from elementary school through early adulthood. The study will include military personnel and their dependants, and review concussions and risk factors.

The study, one of the most extensive ever done, will be scrutinized intently by Americans worried about brain injuries in sports, said Robert Graham, head of the panel carrying out the study. "You start talking about, 'Is it safe for Sally to be playing soccer?,' you get lots of public interest," Graham, a public health expert at George Washington University in Washington, told Reuters after the committee's first meeting. He said the panel likely would submit its report to the Institute of Medicine in the middle of the summer, with publication expected in late 2013.

A 2010 study by the U.S. Centers for Disease Control and Prevention (CDC) found that U.S. emergency rooms yearly treat 173,000 temporary brain injuries, including concussions, related to sports or recreation among people less than 19 years of age. The number of emergency room visits for such injuries rose 60 percent in the previous decade among children and adolescents, the CDC study showed.

A separate 2007 study showed that the incidence of brain injury was highest in football and girls' soccer. About 2,000 former National Football League players sued the league last year, alleging it concealed the risk of brain injury from players while marketing the ferocity of the game. Many of these same players have filed workers' compensation claims in California claiming that head injuries decades ago have caused dementia in later years.

Concerns about a possible link between concussions and mental illnesses, such as depression, grew in the wake of the suicides of former NFL players Junior Seau, Ray Easterling and Dave Duerson in the last two years.

Participants at the committee's meeting said there was a shortage of data on sports-related concussions among young people. The number of relevant brains available for study is in the single digits, and many studies lack breakdowns by age.

Sponsors of the study include the Department of Defense, the CDC and the National Institutes of Health. The panel will also examine studies being done by the CDC and the American Academy of Neurology ...

Hyatt at Fisherman’s Wharf announced it has reached a settlement with the California Division of the Occupational Safety and Health (Cal/OSHA) after working cooperatively with the agency to ensure continued workplace safety for the hotel’s housekeeping staff.

No ergonomic violations related to housekeeper tasks such as bed making, vacuuming or dusting, were found after exhaustive investigations by four separate OSHA jurisdictions, and all repetitive motion citations were withdrawn at Hyatt at Fisherman’s Wharf.

The settlement resolves the last of 12 inspections at Hyatt hotels that were instigated by complaints made by the UniteHere union as a part of its ongoing campaign to pressure Hyatt to force associates into union membership through non-democratic and intimidating tactics. Hyatt stands by its associates’ rights to a secret ballot election to determine union representation.

"We take the safety and health of all our associates very seriously. Their wellbeing is of paramount importance to us," said Matt Humphreys, General Manager, Hyatt at Fisherman’s Wharf. "We’re pleased that we were able to work cooperatively with Cal/OSHA and that the settlement does not support the union’s complaints that our housekeepers are exposed to repetitive motion injuries."

In the settlement, Hyatt at Fisherman’s Wharf agreed to continue with its ongoing, thorough job hazard analysis of housekeepers’ job tasks to determine if they pose any unsafe or unhealthy workplace exposures, and to examine housekeeper tools and equipment. That analysis is led by a certified and independent ergonomist. In addition, Hyatt at Fisherman’s Wharf will make changes to its workplace training and equipment inventory ...

The Department of Industrial Relations and its Division of Workers Compensation (DIR/DWC) announced new regulations implementing provisions of Senate Bill 863, California’s landmark workers’ compensation reform signed last year by Governor Edmund G. Brown Jr. to save businesses millions of dollars in unnecessary costs while boosting worker protections. "We are on track to implement the wide-ranging reform which was the result of extensive input by workers and employers," said DIR Director Christine Baker. "These reforms are engineered to reduce unnecessary costs while redirecting some of the savings to increase benefits for disabled workers."

Key components of Senate Bill 863, which became law on January 1, 2013, include a 30 percent increase in permanent disability indemnity rates for workers phased in over two years. Other aspects of the bill, including those designed to cut costs for businesses, will now be implemented through regulatory action. Today’s new regulations launch that full rulemaking process with public hearings scheduled to take place by March.

The new regulations, approved on an interim basis by the Office of Administrative Law, improve workers’ compensation by creating an independent medical panel to review injuries, streamlining billing disputes and curbing unnecessary liens. Details of these new regulations include:

Utilization Review, Independent Medical Review - For injuries on or after Jan. 1, 2013, and effective July 1, 2013 for all dates of injury, medical treatment disputes will be resolved by physicians through an efficient process known as independent medical review (IMR), rather than through the often cumbersome and costly adjudication system. If utilization review denies, delays or modifies a treating physician’s request for a specific course of medical treatment for the reason that the treatment is not medically necessary, the injured employee will have the right to request a review of that decision by IMR conducted by a physician. The physician review will be expeditious and based upon evidence-based standards to ensure that injured employees receive timely and appropriate medical treatment.

Qualified Medical Evaluator Regulations and PDRS - The new regulations amend existing rules to clarify that independent medical review is the sole process for resolving disputes regarding ongoing medical treatment issues; limits the number of offices from which a Qualified Medical Evaluator (QME) may conduct evaluations; streamlines the application process for chiropractors; allows for factual corrections of a comprehensive medical-legal report from a QME panel; and amends a number of forms.

Independent Bill Review- Medical service billing disputes for dates of service on or after Jan. 1, 2013, will be resolved through a non-judicial process of independent bill review (IBR). The IBR applies to any medical service bill where the fee is determined by a fee schedule adopted by the DWC. If the medical provider disagrees with the amount paid by a claims administrator on a properly documented bill following a second review, he or she can request an IBR. This regulation will eliminate unnecessary, costly litigation.

Electronic document filing and lien filing fee - Any lien for reasonable medical expenses incurred by or on behalf of the injured employee (except disputes subject to independent medical review or independent bill review) and filed on or after Jan. 1, 2013, is subject to a lien filing fee of $150. For those liens filed before Jan. 1, 2013, there will be a $100 activation fee which must be paid prior to Jan. 1, 2014, or the lien will be subject to dismissal by operation of law.

Self-Insurance and Annual Actuarial Reports - These new regulations will implement SB 863’s requirement for all private self-insured employers and groups to obtain an actuarial report to more accurately establish the organization’s California workers’ compensation liability exposure. The regulations will further define new methods in how the OSIP establishes security deposit collateral requirements based on this additional information.

Interpreter Services - SB 863 amended Labor Code section 4600(g) to state that an injured worker is entitled to the services of a "qualified interpreter" at medical appointments if the injured worker is not proficient in English. These regulations define the "qualified interpreter for purposes of medical treatment appointments" as "an interpreter who has a documented and demonstrated proficiency in both English and the other language; a fundamental knowledge in both languages of health care terminology and concepts relevant to health care delivery systems; and education and training in interpreting ethics, conduct and confidentiality" so that employers can furnish, and non-English-speaking injured employees can receive, interpreter services at medical treatment in accordance with the statute.

Supplemental Job Displacement Benefits - Makes modifications reflecting regulatory changes regarding offers of work, notifications and vouchers for retraining workers injured on the job.

Hospital outpatient departments and ambulatory surgical centers fee schedule - The statute also amended the official medical fee schedule for hospital outpatient departments and ambulatory surgical centers, reducing the facility fee for ambulatory surgical center services to 80 percent of what Medicare bills for the same services in a hospital outpatient. This change will save an estimated $62 million plus additional savings in system costs. The regulation is effective Jan. 1, 2013.

Extensive information on workers’ rights and employers’ responsibilities as well as information for small business owners can be found on DIR’s website. DIR’s rulemaking web page includes a quick overview of regulations and is updated regularly ...

Yvonne Andrade brought an action against defendant City of Milpitas for failure to accommodate her disability and retaliation.

In August 2000, Andrade became a permanent hourly paid employee for the City. Since that time, she has held the position of office specialist for the planning and neighborhood services department, which is located at city hall. Andrade attends planning commission meetings and drafts the minutes for the planning commission and the library commission. She also performs office administrative functions, including generating correspondence, completing forms and other documents for planners, and entering timesheet information into the payroll computer system. Andrade’s job duties require her to be present in the office to assist other City personnel, to answer telephones, to file documents, to interact with other City employees, and to assist at public meetings.

In March or April 2008, Andrade was diagnosed with fibromyalgia. Andrade took a medical leave from July to October 2008. In October, her doctor released her to work for 40 hours a week, but placed partial work restrictions relating to lifting and other physical activities. Andrade agreed that the City accommodated these restrictions.

Andrade was hospitalized for a week in November 2008. She was also hospitalized in February 2009 when she was diagnosed with Addison’s disease, arrhythmia, and arthritis. Medication controls the symptoms of her Addison’s disease and her arrhythmia. Andrade periodically receives physical therapy for her arthritis. However, Andrade is in pain every day from fibromyalgia. Sometimes her pain is so severe that she is unable to function and is bedridden.

Andrade used her leave time, including vacation time and sick leave, to enable her to be paid when she did not come to work and she also took leave without pay. Andrade was also allowed to make up missed time by working at lunch time or until 6:00 p.m. No one at the City was critical or complained about her missing work and taking leave without pay or denied her the ability to go home when she did not feel well. In November or December 2008, Andrade spoke to her supervisor, and asked to work from home when she was not feeling well. She told him that this arrangement would vary from two to four hours a week. He told her that she could occasionally work from home on a limited basis.

The City refused to allow her access to the computer systems from her home as this would pose a security threat to City information from outside. Andrade argued that the City failed to accommodate her medical condition because it refused to allow her to perform some of her duties from home. She also argued that the City failed to engage in the interactive process in a timely manner to determine effective reasonable accommodation.

The trial court granted summary judgment in favor of the City of Milpitas, and Andrade appealed. The Court of Appeal in the unpublished opinion of Yvonne Andrade v City of Milpitas affirmed the dismissal of her case.

An employer is not required to choose the preferred accommodation or the one that the employee seeks.Rather, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the [one] that is easier for it to provide. As the Supreme Court has held,an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided. Moreover, an employer is not required to make an accommodation that the employer demonstrates would "produce undue hardship."

Here, the undisputed evidence was that Andrade requested that she be allowed to work from home for two to four hours per week depending on her health and ability to work. Thus, the City offered a reasonable accommodation for Andrade’s disability ...

Florida-based American Sleep Medicine LLC has agreed to pay $15,301,341 to resolve allegations that it billed Medicare, TRICARE - the health care program for Uniformed Service members, retirees and their families worldwide - and the Railroad Retirement Medicare Program for sleep diagnostic services that were not eligible for payment, the Justice Department announced today.

American Sleep, headquartered in Jacksonville, Fla., owns and operates 19 diagnostic sleep testing centers throughout the United States, including in Alabama, California, Delaware, Florida, Illinois, Indiana, Kansas, Kentucky, Maryland, Missouri, New Jersey, Tennessee, Texas and Virginia. The company’s primary business is to provide testing for patients suffering from sleep disorders such as obstructive sleep apnea. The test results are used by doctors to determine the most appropriate course of treatment for patients. The most common tool used to diagnose sleep disorders, particularly sleep apnea, is a procedure called polysomnographic diagnostic sleep testing. Under federal program requirements for the reimbursement of claims submitted for sleep disorder testing, initial sleep studies must be conducted by technicians who are licensed or certified by a state or national credentialing body as sleep test technicians.

The United States contend that Medicare and TRICARE claims submitted by American Sleep during this period were false because the diagnostic testing services were performed by technicians who lacked the required credentials or certifications, when it knew this violated the law. American Sleep submitted false claims to Medicare and TRICARE between Jan. 1, 2004, and Dec. 31, 2011, according to the United States’ allegations.

The allegations covered by today’s settlement were raised in a lawsuit filed against American Sleep under the qui tam, or whistleblower, provisions of the False Claims Act. United States ex rel. Daniel Purnell v. American Sleep Medicine LLC, no. 3:07-cv-12-S (W.D. Ky.). The act allows private citizens with knowledge of fraud to bring civil actions on behalf of the United States and share in any recovery. Relator Daniel Purnell will receive $2,601,228 as part of today’s settlement.

In addition to the $15.3 million payment, American Sleep entered into a five-year Corporate Integrity Agreement with the Office of Inspector General of the Department of Health and Human Services. The agreement requires enhanced accountability and wide-ranging monitoring activities conducted by both internal and independent external reviewers.

Principal Deputy Assistant Attorney General Delery thanked the Office of the Inspector General for the Department of Health and Human Services, the Medicare Railroad Retirement Program, the Defense Criminal Investigative Service, the FBI, the U.S. Attorney’s Office for the Western District of Kentucky and the Commercial Litigation Branch for the collaboration that resulted in today’s settlement. The claims settled by this agreement are allegations only, and there has been no determination of liability ...

Most doctors copy and paste old, potentially out-of-date information into patients' electronic records, according to a new study looking at a shortcut that some experts fear could lead to miscommunication and medical errors. "The electronic medical record was meant to make the process of documentation easier, but I think it's perpetuated copying," said lead author Dr. Daryl Thornton, assistant professor at Case Western Reserve University School of Medicine in Cleveland.

According to the report in Reuters Health, many electronic recordkeeping systems allow text to be copied and pasted from previous notes and other documents, a shortcut that could help time-crunched doctors but that could also cause mistakes to be passed along or medical records to become indecipherable, critics argue. To see how much information in patient records came from copying, Thornton's team examined 2,068 electronic patient progress reports created by 62 residents and 11 attending physicians in the intensive care unit of a Cleveland hospital.

Using plagiarism-detection software, the researchers analyzed five months' worth of progress notes for 135 patients. They found that 82 percent of residents' notes and 74 percent of attending physicians' notes included 20 percent or more copied and pasted material from the patients' records. In one case a patient left the ICU and was readmitted a couple of days later. The patient's medical record included so much copied and pasted information, the new team of doctors wasn't able to decipher the original diagnosis. In the end, the new team called the physicians who originally diagnosed the patient.

Nothing about a patient - length of stay, gender, age, race or ethnicity, what brought them into the ICU or how severely ill they were - affected how often a physician copied information into the medical record. Although residents' notes more often included copied material, attending physicians tended to copy more material between notes. They also tended to copy more of their own assessments from other notes.

Experts suggested that copying signifies a shift in how doctors use notes - away from being a means of communication among fellow healthcare providers and toward being a barrage of data to document billing. "What tends to get missing is the narrative - what's the patient's story?" said Dr. Michael Barr, senior vice president in the Division of Medical Practice, Professionalism and Quality at the American College of Physicians. Barr was not involved in the current study ...

Martina A. Silas represented Ross Gunnell in a personal injury action filed in 1995 resulting in a jury award that was later overturned on the grounds that worker’s compensation was the exclusive remedy. Gunnell and others were unskilled laborers who worked for four and one-half months on a cleaning project at Metrocolor Laboratories, Inc. (Metrocolor), which owned a facility to develop and process movie and television film.Metrocolor provided no protective clothing other than rubber gloves, which rapidly disintegrated. Gunnell was never told what the solution was, but later learned it was Absorb, a solvent/degreaser, that contained a hazardous substance known to cause brain and nervous system damage and that was readily absorbed through the skin. Gunnell suffered from anxiety and panic attacks, loss of cognitive function, and respiratory problems, and was disabled from work as a laborer.

The jury returned a verdict of $1,650,000 in compensatory damages and $5 million in punitive damages. Pursuant to Metrocolor’s motion for judgment notwithstanding the verdict based on the holding of Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, the court found that pursuant to Labor Code section 3602, subdivision (a), worker’s compensation provided Gunnell’s exclusive remedy. The Court of Appeal in Gunnell v. Metrocolor Labs, Inc., 92 Cal.App.4th at page 714 affirmed the trial court

Gunnell then filed a malpractice action against Silas, asserting she failed to assert a meritorious defense to worker’s compensation exclusivity, and had misappropriated funds. Gunnell was represented by James Ellis Arden in that action. Silas’s motion for summary judgment was granted in Gunnell’s malpractice action.

In 2008, Silas filed her complaint for malicious prosecution and abuse of process against Arden, his law firm (Scott, Arden and Salter), and several other attorneys involved in the malpractice action. Silas asserted that (1) Arden continued to prosecute the claim for misappropriation of settlement funds throughout three versions of the complaint, even when confronted with checks Gunnell endorsed and a notarized settlement agreement; and (2) argued that she should have asserted the section 3602 subdivision (b)(2) exception although Gunnell’s own testimony about his chapped hands undermined a key component of the theory, namely that he was unaware of the cause of his physical ailments.The jury found for Silas and awarded $145,756 in legal fees and costs, $30,000 in noneconomic damages, and $125,000 in punitive damages. Arden appealed.

The Court of Appeal in the unpublished opinion of Martina A. Silas v James Ellis Ardien affirmed the trial court. Arden argued, among other issues that the record was devoid of evidence that he lacked probable cause or harbored malice towards Silas in bringing the malpractice action against her. To establish a cause of action for malicious prosecution, a plaintiff must prove that the underlying action was (1) terminated in the plaintiff’s favor, (2) prosecuted without probable cause, and (3) initiated with malice. A claim for malicious prosecution need not be addressed to an entire lawsuit; it may, as in this case, be based upon only some of the causes of action alleged in the underlying lawsuit. A litigant will lack probable cause for his action if he relies upon facts which he has no reasonable cause to believe to be true, or seeks recovery upon a legal theory which is untenable under the facts known to him. Arden continued to prosecute the misappropriation claim by including it in Gunnell’s amended complaints, which were filed even after confronted with Gunnell’s signatures on all relevant documents ...