The California Division of Workers’ Compensation (DWC) and MAXIMUS Federal Services invite all interested parties to attend a one-hour webinar on the Independent Billing Review (IBR) process. This webinar is set for May 13, 2014 from 10:00 to 11:00 am. It provides attendees with key information related to the IBR process, including but not limited to an explanation of the current IBR workflow.

Space is limited and pre-registration is required to attend this free meeting. The DWC and MAXIMUS Federal Services will also address questions that relate to the current IBR process during the webinar. Please submit questions in advance via email to IBRHelp@maximus.com. Questions need to be submitted no later than Wednesday, May 7, 2014.

To register for the webinar, click here ...

The voluminous report on state (and Canadian province) workers compensation benefits was issued Wednesday by the Massachusetts-based Workers Compensation Research Institute and the International Association of Industrial Accident Boards and Commissions. While the report covers all cash, medical and therapy benefits, the disparity between California and other states in "permanent partial" disabilities is particularly evident and could fuel the Capitol's perennial political jousting over workers compensation costs and benefits.

The debate almost always focuses on the "permanent partial" aspect of the multi-billion-dollar, employer-financed program because it is the most prevalent and cumulatively most expensive of the various benefits.

Roughly once a decade, the Legislature overhauls the multi-billion-dollar system, and it last occurred in 2012 as employers and labor unions combined forces. The 2012 bill raised cash benefits but tightened other aspects of the program enough to offset the cost of the benefit increase.

Even so, it set a $290 per week maximum (as of this year) for workers deemed to have "permanent partial" disabilities in California. The new report indicates that it's lower than those of all but two other states, Alabama and Rhode Island.

"Permanent partial" benefits are as high as $1,441.80 per week in Washington, D.C., and $1,419 in Iowa.

The report is available only by purchase here ...

The state Senate on Monday approved a measure that would give families of deceased firefighters and police officers more time to file for workers’ compensation death benefits. This bill provides an extension for dependents of deceased firefighters and peace officers to file for workers' compensation death benefits if the death resulted from any of the following: cancer, tuberculosis, methicillin-resistant Staphylococcus aureus (MRSA) skin infections, or bloodborne infectious disease. This extension is for up to 420 weeks from the date of injury, but in no case more than one year from the date of death, as specified. This bill requires the extension to sunset on January 1, 2019.

According to the Senate Appropriations Committee, this bill results in an increase in workers' compensation costs related to state employees who are firefighters and peace officers. The specific state departments that would be impacted are the Department of Forestry and Fire Protection and the California Highway Patrol. The amount of the increase is unknown.

Assemblyman John Pérez (D-Los Angeles) wrote the measure that would give families an extension of 420 weeks from the date of injury but no more than one year from the date of death to file claims.

"The families of fallen public safety officers face an extraordinary emotional and financial toll when they lose a cherished loved one," said Sen. Anthony Cannella (R-Ceres). "Simply put, AB 1035 is the right thing to do."

The bill is supported by a host of public employee unions, and opposed by the California Association of Joint Powers Authorities, the California Coalition of on Workers' Compensation California, the State Association of Counties, the County of Los Angeles, CSAC, the Excess Insurance Agency League of California Cities and the Rural County Representatives of California

Opponents argue that this bill will increase costs on local governments and counties at a time when budgets are limited and the full impact of the 2012 Workers' Compensation reform is unknown. Opponents also argue that this bill is being considered at the same time as other bills which add to the number of peace officers who qualify for existing presumptions, and that these bills could increase the fiscal impacts of this bill. Opponents also maintain that the recent National Institute of Occupational Safety and Health study only noted increases in some cancers, while the existing workers' compensation presumption covers all cancers.

The bill now goes back to the Assembly for a vote on amendments. It was backed by public employee unions but opposed by groups such as the League of California Cities and the California State Assn. of Counties.

Gov. Jerry Brown vetoed a similar measure last year, but Cannella said changes have been made to address the governor’s concerns, including a Jan. 1, 2019, sunset date for the extension ...

Travelers will more than double its network of patented ConciergeCLAIM(R) Nurse sites to 30 locations across the United States, helping facilitate convenient access to care for injured employees with the personal assistance of a Travelers nurse to guide them through the workers compensation process.

Placing a Travelers nurse in a care provider's clinic makes it easier for patients to focus on their treatment and return to work, while the nurse helps patients understand the workers compensation system, reviews their diagnosis and treatment plan and assists with referrals and other components of their care regimen.

"Businesses of all sizes face increases in medical expenses as a portion of their overall loss costs, particularly in workers compensation," said Jim Wucherpfennig, Vice President of Travelers' workers compensation claim services. "Increased demands on the healthcare system, an aging population and a limited supply of physicians could mean increased time out of work for injured workers because of longer waits to access medical care. The local and responsive nature of the ConciergeCLAIM Nurse program helps employees return to work sooner and reduces employers' workers compensation-related costs."

ConciergeCLAIM Nurse is part of Travelers Medical Advantage(SM) . This multifaceted program packages more than a decade of investments in infrastructure, specialized expertise, and data and analytics to effectively manage medical costs for Travelers' customers across all casualty lines of business, including workers compensation, general liability and auto.

Travelers initially conducted a pilot of the ConciergeCLAIM Nurse program in 2010 and steadily opened additional sites in recent years in order to assess the model's long-term sustainability and effectiveness. Early results achieved in the first phase of the program were impressive, including a 24 percent quicker return-to-work time for injured employees, a 29 percent increase in the use of network care providers, and five percent reduction in loss costs for employers.

The Association of American Medical Colleges (AAMC) projects that the aging population and influx of newly insured individuals under the Affordable Care Act will contribute to an expected shortage of nearly 92,000 physicians by 2020. Stationing Travelers nurses within local care provider's clinics streamlines the entire process, from assessing the injury and helping arrange for care on-site within the clinic or with other in-network medical providers, to providing assistance navigating the workers compensation claim process.

Wucherpfenning added, "Helping an injured employee navigate the workers compensation process is a huge benefit. A more personalized approach can help drive better health outcomes and simplify the claim process for both the injured worker and their employer." ...

Former Pacific Hospital owner Michael Drobot pleaded guilty on Thursday to federal charges related to his role in a medical fraud scheme that authorities have said may be the largest of its kind in California history. Drobot, who agreed to plead guilty in February, is scheduled to be sentenced in December, according to the story in the Press Telegram.

Federal prosecutors charged Drobot, who lives in Corona del Mar, with conspiracy and paying kickbacks to other doctors in connection with a federal health care program. He faces 10 years in federal prison. As laid out in previous court filings and statements from government officials, Drobot is accused of paying kickbacks of $10,000 to $15,000 to doctors who referred patients to the facility formerly known as Pacific Hospital for spinal surgeries. Drobot paid for the kickbacks by taking advantage of a loophole in California law to overcharge for the reimbursable costs of spinal hardware employed in the surgeries. The activities may have led to as much as $500 million worth of fraudulent claims, mostly filed through the state’s workers compensation system. As of Thursday, federal officials have not filed charges against anyone else who may have broken the law as part of the conspiracy.

The Drobot case is related to the corruption cases that have been filed against state Sen. Ron Calderon, D-Montebello, and his brother, former Assemblyman Tom Calderon. Drobot has told federal officials that he bribed Ron Calderon in order to keep on the books the law that made it possible to seek inflated reimbursements for spinal hardware. Calderon, whom the FBI has also accused of taking bribes from agents posing as filmmakers seeking a more favorable tax credit law, has pleaded not guilty to all charges filed against him. Tom Calderon has also pleaded not guilty to charges of conspiracy and money laundering for allegedly helping his brother commit crimes.

Drobot’s attorney, Jeffrey H. Rutherford, could not be reached for comment Thursday. When Drobot pleaded not guilty for procedural reasons last month, Rutherford said his client was cooperating with an expanding federal investigation. "He has acknowledged and accepts responsibility for his actions," Rutherford said at the time.

Pacific Hospital is now called College Medical Center. Santa Fe Springs-based College Health Enterprises owns the facility and has hired a Molina Healthcare affiliate to operate it ...

For Japanese auto brands, the logic of keeping their U.S. sales and administrative arms in California is breaking down under the outsized penalties of conducting business in the Golden State and the changing dynamics of the North American automotive industry. So Toyota is leaving, according to Automotive News.

And where is Japan’s biggest automaker relocating its sales and marketing operations in America? Why, North Texas, of course. The move to Plano, Texas, will involve most of the 5,000 managers and employees at Toyota’s current Torrance, Calif., headquarters, the magazine said. Texas has scored one of the biggest prizes so far in its very focused, state-on-state battle with the administration of Gov. Jerry Brown to get plum companies now headquartered in California to abandon the bluest state for the reddest one. Clearly, Perry caressed a trump card in the fact that Toyota has enjoyed a deep relationship with Texas through its $2.2-billion truck-assembly complex near San Antonio.

Toyota’s oldest U.S. manufacturing operations are in Georgetown, Ky. The company now is making Corollas in Mississippi and exporting them to Latin America. It produces vehicles from Indiana to Alabama. And Toyota performs much of its engineering work in Michigan.

The Toyota move mirrors the decision made by Nissan - leaving its U.S. sales headquarters in California and relocating Nissan North America to Nashville in 2006.

According to the story in Forbes, California’s business climate is becoming an even bigger downer. California has become infamous with business executives and owners there not only for high tax rates and complex taxing schemes but also for overzealous regulations and regulators that have managed to stifle the entrepreneurial energy of thousands of companies.

Even Hollywood movie studios have been souring about producing flicks in California, increasingly reckoning that the sweet tax breaks and assistance packages now offered by so many other states offset the legacy advantages and ideal production climate in California.

About the only vast remaining pocket of dynamism in the California economy is Silicon Valley, where the mastery of the global digital economy by companies ranging from Google GOOG -1.35% to Hewlett-Packard HPQ +1.39% has become so complete that they have been able to succeed despite the home-state business landscape.

In the annual Chief Executive magazine "Best States / Worst States" ranking that surveys CEOs for their opinions, Texas has been holding on to the No. 1 spot for a while; California seems permanently relegated to No. 50 ...

Lisa Weilmann and the employer United Temporary Services resolved this case by way of Stipulated Award on 7/18/02. The award provided future medical treatment to bilateral upper extremities, neck, fibromyalgia and psyche. The current dispute between the parties involved four UR denials. Two involved a request for Botox to treat migrain, an two were a request for Xyrem for shoulder tendentious, The employer's UR physicians declined to authorize the treatment. The applicant proceeded to hearing and the WCJ found defendant's UR denials invalid and ordered the employer to provide treatment without finding a medical necessity.

The applicant claimed that there were three material defects in the UR process. One error was the lack of a signature on the UR decision. Pursuant to the Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 313 decision the WCJ ruled that "the absence of a signature on the UR decision is not a minor defect." Although the WCJ noted that the absence of a signature does not make the report inadmissible pursuant to regulation 10606, but will be considered in weighing the evidence. Nonetheless, no particular rationale was given in the Opinion on Decision as to why a signature was that important.

A second claimed UR defect involved the failure of the employer to provide UR with necessary medical records including prior reports of an AME. In this regard the WCJ held that "because of the complexity of the case the UR reviewers should have either asked for the prior medical reports of the AME or the prior reports should have been given to them.

A third claimed UR defect involved the lack of the UR physicians having appropriate board specializations in the medical areas under review. Labor code 4610 ( e) has a two-tier test. First it must be found that the doctors are competent to evaluate the specific clinical issues. Second, the services must be within the scope of the physicians practice. The WCJ was unable to find that the UR physicians met this test.

The WCJ ordered the defendants to provide the requested medical care without finding medical necessity based upon substantial medical evidence. The employer appealed and the WCAB granted reconsideration in the case of Lisa Weilmann v United Temporary Services.

The WCAB concurred with the WCJ's determination that the the failure of all of the reviewing physicians to sign their reports and the failure to provide the relevant AME reports that explain necessity for the requested treatments, are sufficient to undermine the integrity of the UR decisions and renders invalid the UR determinations in this case. It did not however agree with her determinations with respect to a lack of the correct medical specialization.

But the WCAB went to to rule that "a finding that the UR determination is not valid to deny the requested treatment does not mandate hat the treatment be authorized. As held in Dubon, the applicant must still provide substantial medical evidence to establish that the requested treatment is reasonable and necessary. After finding the UR determinations were invalid in this case, the WCJ ordered defendant to provide the request treatments without making findings that the treatments are reasonable and necessary. Accordingly, we shall grant reconsideration to amend the Findings of Fact and Order to defer the order authorizing the disputed Xyrem and Botox treatments, pending a determination as to whether the treatments are reasonable and necessary." ...

The parties stipulated that Manual Gomez suffered and industrial injury to both knees,his back and psyche in 2007 which resulted in 45% permanent disability and need for further medical treatment. After this stipulation, the treating physician Kevin Pelton, MD sent Defendant Compwest Insurance a Request for Authorization ("RFA') for partial left unicompartmental knee replacement with post-operative therapy.

The UR physician stated two reasons for non-certification of the treatment request. First, he states that the guidelines for partial knee replacement are not met, relying on the ODG knee chapter. Second, the UR physician stated that the left knee is not an accepted body part. However, the second reason was not correct since the stipulation agreed that both knees had been injured. The record does not contain a request for Independent Medical Review ("IMR") had been requested, but the EAMS showed an objection to the request for IMR filed by the defendants.

After a trial and submission of the issue, The WCJ determined that UR was conducted in a timely manner. However, the record demonstrates that the UR process was flawed. The first of the two reasons for denial treatment was medical necessity based on review of medical reports and the ODG treatment guidelines. However, the second reason, that '"he left knee is not an accepted body part," is factually incorrect. The WCJ awarded treatment for the right knee, but WCJ further found that the request for medical treatment of the left knee, "was communicated to defendant on or after July 2, 2013 and, therefore, must be addressed through the independent medical review process."

After the WCJ issued his January 16, 2014 decision, the Appeals Board in Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 313 addressed the process that now applies to medical treatment disputes following the Legislature's implementation of the !MR process as part of SB 863. In Dubon, the Appeals Board concluded that the defendant's UR process in that case, "suffers from material procedural defects that undermine the integrity of the UR decision because the UR physicians were not provided with adequate medical records." For that reason, the case was returned to the WCJ for determination on whether the requested medical treatment was reasonably required.

Reconsideration was granted in the panel decision of Gomez v Facilities Support Services. In this case, the WCJ initially found that the request for treatment of the left knee was required to be submitted to IMR because the request for that treatment was communicated to defendant after the July 2, 2013 implementation of the !MR process by the Legislature. However, the WCJ also wrote in his Report that the UR process was "flawed" because it incorrectly states that applicant's left knee is a denied body part. Thus, under Dubon, the question is whether there are UR flaws that are "material procedural defects" that undermine the integrity of the UR decision, or if there are only "minor technical or immaterial defects" that do not invalidate the UR determination. This issue should be first addressed by the WCJ at the trial level in light of the Appeals Board decision in Dubon.

If the WCJ finds that there are material procedural defects that invalidate the UR, he should then determine, based upon substantial medical evidence, if the requested left knee medical treatment is reasonably required to cure or relieve the injured worker from the effects of his injury. The WCJ's new decision should provide a complete explanation of the reasons for his determinations ...

The workers' compensation claims industry is cautious about the prospect of the rise of claims for "medical" marijuana for those recovering from an industrial injury. Public support seems to have caused a wave acceptance for what remains a federally illegal practice. An now Reuters health reports that a measure to regulate California's chaotic medical marijuana industry passed a key legislative hurdle on Tuesday, in a move that could lay the groundwork to tax and control recreational use of the drug if it ultimately becomes legal.

U.S. states are increasingly moving to remove curbs on marijuana following landmark voter initiatives in Colorado and Washington state in 2012 that legalized the drug for recreational purposes. Many more states allow medicinal pot. But the drug remains illegal under federal law, leaving states that have opted for medicinal legalization struggling to control a thriving trade in medical cannabis. "The current state of chaos around medical marijuana has got to come to an end," said state Assemblyman Tom Ammiano, a San Francisco Democrat.

If passed, his proposal, AB 473, could "set a template" to regulate recreational use of marijuana by adults, Ammiano said, a move he has long favored. The bill marks Ammiano's second run at regulating medical marijuana in California, where concern has grown over the lack of rules for the hundreds of street-corner pot dispensaries and delivery services that have sprung up since medical marijuana was legalized 15 years ago. Besides the pot shops that authorities struggle to regulate, other problems include inappropriate prescribing by unethical doctors, and a violent, "wild West" culture of illegal cannabis farms in the state's forests, Ammiano said. His bill would make it illegal for doctors to recommend medical marijuana for patients they have not examined, and bar prescriptions by doctors with a financial interest in a pot dispensary. It would also let the Department of Alcoholic Beverage Control enforce laws regulating marijuana and develop plans to tax it beyond the sales tax now levied, while ensuring it is grown and processed safely and in ways safe for the environment.

Supporters, including the city of Oakland, said the bill would bring order and clarity to the market.

But a law enforcement group criticized Ammiano's plan to regulate medical cannabis through Alcoholic Beverage Control. "There is no little irony in the department of Alcoholic Beverage Control as the administering agency for the medical marijuana trade," the California Narcotic Officers' Association, which opposes legalization, wrote in its testimony. "We know of no other area of law where an agency charged with regulating recreational substances such as alcohol is also given portfolio over matters alleged to be medical."

California voters rejected a ballot initiative to legalize marijuana for recreational use in 2010, but a poll last fall by the Public Policy Institute of California showed an increase in support, with 60 percent of likely voters favoring legalization.

Ammiano's plan, which passed the assembly Public Safety committee on Tuesday, is one of two marijuana regulation proposals making their way through the legislature. The senate version, which would regulate the drug via the state health department instead of the Alcoholic Beverage Control department, has won support from some law enforcement agencies, signaling to many that industry regulations may be coming soon, after years of inaction. "I feel a lot of momentum behind these two bills," said Don Duncan, California director for the medical marijuana advocacy group Americans for Safe Access.

In 2003, the Legislature enacted the Medical Marijuana Program Act (MMPA). Under the guidance of the MMPA, approximately 60 California cities and counties have created medical marijuana access ordinances that can act as a guide for the state. However, many other cities and counties are calling for more guidance and regulation from the state and have passed bans or moratoria on medical marijuana cultivation and distribution while awaiting such guidance.

Last year the California Supreme Court gave local governments the power Monday to zone medical marijuana dispensaries out of existence, a decision that upholds bans in about 200 cities ...

A Riverside woman was charged with two counts of felony identity theft on accusations she used someone else’s Social Security number to file a workers’ compensation claim, the San Bernardino County district attorney’s office announced.

Blanca Rodriguez, 22, claimed she was injured on the job in 2011 when she was working as a janitor at Ontario Mills mall for the Interstate Cleaning Corporation. She received treatment for pain in her lower back, knees and calves, a DA news release stated. During a claims investigation, officials discovered Rodriguez used a Social Security number that was not issued to her to file the claim.

The discovery went to the DA’s workers’ compensation fraud unit in April 2013 and on April 14, 2014, they filed charges. Rodriguez was arrested the next day and booked into the West Valley Detention Center and held in lieu of $100,000 bail, the release stated.

Rodriguez faces three years in county prison if convicted on all counts ...

Plans to stabilize the money-losing U.S. Postal Service have been bouncing around Capitol Hill for a long time, long enough to make you wonder if Congress will ever do anything about it. The proposals are designed to help the Postal Service deal with a changing business climate that left it with a net loss of $5 billion in fiscal year 2013. Yet the Washington Post reports that if the legislation in the Senate becomes law, its reach will extend well beyond the postal facilities and those who work there. The measure could have a significant impact on many federal employees, particularly those who are injured. That worries feds across the government.

The legislation would cut some payments provided through the Federal Employees’ Compensation Act (FECA), better known as workers’ comp, for staffers injured on the job. The Homeland Security and Governmental Affairs Committee has approved the legislation, sponsored by its chairman, Thomas R. Carper (D-Del.).

Is comes as no surprise that Colleen M. Kelley, president of the National Treasury Employees Union, said she "strongly opposes . . . unwarranted cuts in FECA benefits for injured federal workers who are either older or have family obligations. Under this bill, injured workers would have their FECA benefits reduced by one-third to one-quarter when they reach the retirement age for Social Security."

A committee aide said that benefits would not change for workers who are permanently and totally disabled, or age 65 or older. The aide added that the bill includes programs to help injured workers get back to work.

So far, opposition by NTEU and other labor organizations has not been strong enough to prevent the workers’ comp provision from advancing along with the rest of the legislation. The overall bill won bipartisan approval in the committee with a 9-1 vote in February and the full Senate voted 62-37 on the same measure two years ago. The one "no" vote in February was cast by Sen. Jon Tester (D-Mont.). He complained that the legislation "includes sweeping changes to the federal workers compensation program, even though the committee has yet to hold a single hearing on the issue. It certainly seems there was time to hold a hearing, given how long the provision has been around. And the Senate seems in no rush to move the legislation now."

Asked for an update on the legislation, the committee aide said Carper "remains hopeful that the full Senate can consider the bill later this year." ...

A 30-year-old San Jose man has been charged with felony Workers’ Compensation Fraud after a District Attorney’s Office investigation showed that he was untruthful about a major back injury.

It is alleged that Ricardo Casillas filed a Workers’ Compensation claim for a 2010 back injury. Despite complaining that he was still in excruciating pain and could not lift anything heavy, surveillance video taken in 2012 showed otherwise. After leaving his doctor’s office, Casillas is later seen in a video doing manual labor on his car, including jumping on a wrench to tighten lug nuts. The video shows no evidence that Casillas was limited in his movements or in any pain.

Despite telling doctors that he was in constant excruciating pain and only able to lift a maximum of eight pounds, Casillas was videotaped doing manual automotive work and lifting tires. The tires weighed between 50 and 65 pounds each. He was recently arrested and is expected to be arraigned April 24.

Casillas faces a maximum of five years and four months if convicted of making false or fraudulent material statement to an insurance company and attempted perjury. He would also be ordered to pay full restitution ...

All Workers’ Compensation Administrative Law Judges must follow the California Code of Judicial Ethics. Specifically Labor Code 123.6. (a) provides that "All workers' compensation administrative law judges employed by the administrative director shall subscribe to the Code of Judicial Ethics adopted by the Supreme Court pursuant to subdivision (m) of Section 18 of Article VI of the California Constitution for the conduct of judges and shall not otherwise, directly or indirectly, engage in conduct contrary to that code or to the commentary to the Code of Judicial Ethics."

The Supreme Court Advisory Committee on the Code of Judicial Ethics proposes amendments to the Code of Judicial Ethics from time to time. In February 2014, the Committee published its proposal the amend canon 2C and related provisions of the code. Canon 2C prohibits a judge from holding membership in an organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation , As currently written, this canon does not bar membership in a nonprofit youth organization.

In 2003, the Supreme Court revisited the nonprofit youth organization exception after receiving requests to eliminate the exception . The Bar Association of San Francisco initiated the request, joined by the Santa Clara County Bar Association. Once the bar association’s proposal was publicized, the court received many communications from judges, lawyers, and others. Some of those responding supported elimination of the exception, while others opposed any amendment to the canon. The court ultimately decided to leave the canon intact, but added commentary to canons 2C and 3E to caution judges to be sensitive to the concerns expressed by those advocating elimination of the exception.

Now some ten years later, the Advisory Committee raises the proposal to eliminate the exception once again. The committee analyzed the exception in the context of a judge being a member of the Boy Scouts of America. The Committee commentary on the proposal reasons that until recently, the official policy of the BSA read: "While the [BSA] does not proactively inquire about the sexual orientation of employees, volunteers or members, we do not grant membership to individuals who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the BSA. In May 2013, after a national council meeting, the BSA announced its decision to permit openly gay boys to participate as scouts until age 18, but to continue its bar against gay and lesbian adults as troop leaders or in other leadership positions. Because the BSA continues to discriminate on the basis of sexual orientation, the committee agreed that eliminating the exception, thereby prohibiting judges from being members of or playing a leadership role in the BSA, would enhance public confidence in the impartiality of the judiciary."

The committee noted that the exception was developed in 1996 to accommodate judges who were members of or active in the BSA. "Effectively selecting one organization for special treatment is of particular concern to the Committee, especially in light of changes in the law in California and elsewhere prohibiting discrimination on the basis of sexual orientation. Eliminating the exception would not have any effect on a judge’s family members, who could still join or continue to be members of the BSA."

The announcement states "The proposals have not been approved by the Supreme Court and are not intended to represent the views of the court . These proposals are circulated for comment purposes only."

Some commentators have pointed out unintended consequences of the Committee proposal. Catherine Short, legal director of the Legal Defense Foundation wrote a letter stating "The Committee’s invitation ignores the fact that the change also encompasses other youth organizations whose membership is limited on the basis of gender, e.g., the Girl Scouts." ...

Beginning in early 2011, state Sen. Leland Yee allegedly solicited bribes to fund his San Francisco mayor and California secretary of state campaigns, according to the FBI agents who brought him down last month.

But according to a story in the Contra Costa Times, he appears to have devoted more time and energy to a far more lucrative pursuit: crafting or carrying legislation benefiting special interests who supply campaign contributions. The San Francisco Democratic lawmaker raised more than $150,000 in perfectly legal fashion, scooping up donations from labor unions, trade associations and other groups whose bills he advocated in the hearing rooms and hallways of the Capitol. This newspaper's analysis indicates Yee -- suspended last month from the Senate while he fights federal charges -- took advantage of a legislative system manipulated by lobbyists. He frequently introduced "milker bills" -- a term for legislation that milks donations from special interest groups. There is nothing illegal about pushing legislation on behalf of special interests while taking campaign contributions from them, so long as there's no evidence of quid-pro-quo agreements, which are difficult to prove. But it points to a treacherous gray area in Sacramento between business as usual and corruption.

Perhaps his most peculiar legislative cause involved an obscure group of about 100 traditional Chinese medicine practitioners known as traumatologists.When Yee entered the 2011 race for mayor, it had been years since anyone identifying himself as a traumatologist had donated to one of his campaigns. But once he took up their cause, 41 traumatologists contributed a total of $5,131 to his mayoral bid. Traumatology groups also gave $7,800 to Yee's state accounts. In February 2011, Yee launched a three-year crusade to certify traumatologists -- who use massage, joint manipulation and herbal remedies -- in the same manner as acupuncturists, who in California are considered primary care providers. But the senator ran into furious opposition from a majority of the state's roughly 10,000 acupuncturists, a group that had considered Yee a close political ally. Yee amended his first bill and introduced two others, but most acupuncturists remained opposed, arguing the standards for training and licensing traumatologists were inadequate. They warned of risks to public health. Yee lined up backing for the traumatologists, but some of it was dubious. Among the groups that signed form letters of support were Hop Sing Tong and Chee Kung Tong, Chinatown organizations led by Raymond "Shrimp Boy" Chow, an alleged gangster charged with 10 crimes as a result of the FBI investigation that snared Yee.

Here are a few other examples of bills Sen. Leland Yee carried for groups whose money ended up in his campaign bank accounts. SB 554: Would have required health inspectors to enforce nurse-to-patient ratios at hospitals and imposed fines up to $10,000 on hospitals that fail to comply. Sponsored by the California Nurses Association, the bill never received a hearing. The nurses gave $13,000 to Yee's campaigns plus $50,000 to City Residents Supporting Leland Yee for Mayor 2011, a committee spearheaded by the American Federation of State, County and Municipal Employees. (2011)

SB 282: Sponsored by the California Association of Marriage and Family Therapists to give attorneys for therapists access to patients' medical records when they negotiate legal settlements related to negligence complaints. There was no formal opposition to the bill, which sailed into law. The association gave $2,000 to Yee's campaigns from 2012-2013. (2013)

SB 381: Sponsored by the California Chiropractic Association, it would have barred physical therapists from practicing joint manipulations and adjustments. It died after one hearing before the Senate Business and Professions Committee, where Yee failed to win a single vote. He nonetheless received $8,300 from the chiropractic association and $2,700 from individual practitioners. (2013)

SB 495: Would have boosted the pay for physicians at California State University health centers. It died in the Assembly. It was co-sponsored by the Union of American Physicians and Dentists, which gave $20,000 to one of the independent mayoral committees. The bill's other sponsor was a powerful Yee backer, AFSCME, which along with its affiliates gave $27,800 to Yee's campaigns from 2011 to 2014 as well as $525,000 to two independent Yee-for-mayor committees. (2013)
Source: Bay Area News Group research ...

In May 2008, Linda Hopkins fell from an outdoor balcony at the offices of her employer, Perfect Smile Dental Ceramics, Inc. As a result of the injuries she suffered in the fall, she was unable to work. Jurek Kedzierski and Margo Kedzierski own Perfect Smile and also own the office building in which Perfect Smile is located. Shortly after her accident, Hopkins began receiving workers' compensation benefits. In April 2009, she filed a claim with the Workers' Compensation Appeals Board, seeking additional benefits.

In September 2010, brought a negligence/premises liability claim against Jurek Kedzierski, as trustee of the Jerzy Jurek Kedzierski and Margo Kedzierski Revocable Living Trust (the Trust), and against Margo, as an individual, and a negligence claim against the Trust. Hopkins alleged that that the statute of limitations on these claims had been equitably tolled while she pursued her April 2009 workers' compensation claim. Hopkins also alleged that respondents were equitably estopped from asserting a statute of limitations defense based on settlement negotiations that she claimed had taken place prior to her filing the original complaint in this action.

Hopkins's former counsel, Eric Welch. testified that he received information in September 2009 that led him to believe that Perfect Smile owned the building where the accident occurred. In October 2009, Attorney Welch sent a demand letter to Jurek and Perfect Smile. Golden Eagle Insurance, the insurer for both Perfect Smile and the Kedzierskis, informed Welch that it was investigating Hopkins's claim. On March 8, 2010, Golden Eagle notified Welch that it was denying the claim.

The trial court determined that neither doctrine applied. Based on these findings, the court concluded that Hopkins's complaint was not timely filed. The trial court entered judgment in favor of respondents and Hopkins appealed. The Court of Appeal remanded the case to the trial court for factual findings as to whether Hopkins demonstrated the elements of equitable tolling in the published decision of Hopkins v .Kedzierski.

The equitable tolling of statutes of limitations is a judicially created, nonstatutory doctrine. It is 'designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations - timely notice to the defendant of the plaintiff's claims - has been satisfied. Where applicable, the doctrine will suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.

In Elkins v. Derby (1974) 12 Cal.3d 410, 414 (Elkins), the Supreme Court held that the doctrine of equitable tolling may apply to toll the statute of limitations on a claim during the period in which a plaintiff pursues another remedy for the harm that the plaintiff suffered. The Elkins court adopted a line of cases in which courts had concluded that "if the defendant is not prejudiced thereby, the running of the limitations period is tolled '[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.' " (Id. at p. 414, quoting Myers v. County of Orange (1970) 6 Cal.App.3d 626, 634 (Myers).)

In Elkins, the plaintiff suffered an injury in September 1969 while working on the defendants' premises. Approximately 10 months after the injury, the plaintiff filed an application for workers' compensation benefits against the defendants. A workers' compensation referee determined that the plaintiff was not an "employee" of the defendants under the applicable Labor Code provisions at the time of his injury and concluded that he was therefore ineligible for workers' compensation benefits. The plaintiff filed a personal injury action seeking recovery for the same injury that served as the basis of his workers' compensation claim. On appeal, the Elkins court held that the statute of limitations had been tolled for the period during which the plaintiff pursued his workers' compensation remedy.

In the wake of Elkins, the California Supreme Court has stated that in order to prove the applicability of the equitable tolling doctrine, a party must establish "three elements: 'timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff. The timely notice requirement essentially means that the first claim must have been filed within the statutory period and must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim.

Contrary to the trial court's memorandum of decision, there is neither legal nor logical support for the court's ruling that in order for equitable tolling to apply, Hopkins was required to have been unsuccessful in seeking workers' compensation benefits before the Elkins doctrine will apply. "While it is true that the plaintiff in Elkins was unsuccessful in his attempt to obtain workers' compensation benefits (id. at p. 413), there is nothing in the opinion that suggests that this fact was necessary to the court's conclusion." The matter is remanded with directions for the trial court to determine whether Hopkins has demonstrated the three required elements of equitable tolling ...

Handing down the most severe rebuke they can, state regulators slammed BART for serious and willful safety violations related to the deaths of two workers hit by a train in October in Walnut Creek and fined the transit agency $210,000. The state's top safety agency, Cal-OSHA, determined that the victims, Christopher Sheppard, 58, of Hayward, and Laurence Daniels, 66, of Fair Oaks, were not qualified to perform work near energized third rails. One was carrying an aluminum level, highly conductive to third-rail electricity and a safety violation. Investigators also found that the high-ranking transportation manager training another employee to drive the train that struck the two men was seated in a passenger car where he could not view the track ahead, as required. The third violation involved the controversial "simple approval" protocol, which put the onus for trackside workers' safety on those individuals. State regulators said that protocol was "inadequate" to prevent accidents like this and "not followed."

The story in Mercury News says that Sheppard and Daniels were inspecting a dip in the tracks between the Walnut Creek and Pleasant Hill/Contra Costa Centre stations on Oct. 19, during a BART strike when trains were running only for maintenance and training purposes. An autopsy report confirmed both men were facing away from the train when it hit them at about 70 mph, violating regulations requiring one of them to stand away from the track and watch for oncoming trains. While Sheppard and Daniels were experienced track engineers, Cal-OSHA said BART "failed to ensure that only qualified electrical workers were allowed to perform work" near energized third rails.

Union representatives blasted the transit agency for training operators in an unsafe manner and placing workers at risk. Cal-OSHA had pushed for abandonment of BART's "simple approval" protocol since previous worker fatalities in 2001 and 2008, and BART is still appealing a fine levied after the 2008 death of a BART worker hit by a train in Concord. The transit agency is scheduled to appear in Alameda County Superior Court on June 23 to continue that appeal. "BART made inadequate amendments to 'simple approval' following the 2001 and 2008 incidents," Cal-OSHA spokesman Greg Siggins said Thursday, who insisted that protocol went against state law.

"BART has fundamentally upgraded its safety procedures with the implementation of an enhanced wayside safety program and a proposed budget investment of over $5 million in additional resources to bolster BART's safety performance," BART General Manager Grace Crunican said in a statement Thursday. That money will be spent on additional positions in BART's maintenance and engineering, transportation and safety departments, track maintenance, train control systems, enhanced monitoring and a safety incentive program for front-line workers, the general manager said.

In March, BART announced that its on-time performance slipped by two percentage points, from 94.4 percent to 92.1 percent, since state regulators modified safety rules. And things may get even slower, as next month BART will add new policy changes to include better communication between the control center, train operators and work crews on the track; more safety measures and reduced train speeds near wayside workers; and a mandatory watch person during nonoperating hours when maintenance vehicles are on the tracks, Crunican said.

BART is still awaiting a final report and recommendations from the National Transportation Safety Board, which could lead to further changes.

This fine is the largest levied by Cal-OSHA since January 2013, when regulators docked Chevron almost $1 million for the Aug. 6, 2012, fire at its Richmond refinery. BART has 15 working days to appeal but has not indicated how it will proceed, although it did say Thursday that many new safety measures are now in place ...

State regulators have cited a La Mesa real estate firm with $91,865 in penalties following a workplace tree-trimming accident that killed an employee on Nov. 12, 2013. Joshua Alan Pudsey, 42, was in the bucket of a boom lift when he was struck by a 25-foot branch that fell from a 60-foot-tall eucalyptus tree at a home at 4450 Date Ave. in La Mesa. The property was owned by Three Frogs, Inc., which buys, renovates and resells residential property, according to an investigation by California's Division of Occupational Safety and Health, also known as Cal/OSHA. Pudsey was a general construction laborer who had been working for the company for three months before the accident, and he did not have the training or experience needed to safely trim a tree of that size, Cal/OSHA found.

State law requires employers to hire qualified tree workers to direct all work on trees taller than 15 feet. Pudsey and other workers on the job were not trained to use the 80-foot aerial lift they used to cut the tree, nor were they provided with eye protection or harnesses to protect them from falls while working on the lift, the Cal/OSHA investigation found.

Three Frogs owner Scot Wolfe said his firm was cooperating with state regulators. "OSHA's just doing their job," Wolfe said. "We don't fault them for doing their job at all." Wolfe declined to answer other questions about his company but did offer condolences to Pudsey's family. "A man died on the job," Wolfe said. "Our hearts go out to his family, obviously."

Altogether, Cal/OSHA has issued 13 citations against Three Frogs, including eight serious citations. (A violation is considered serious when it could directly result in death or serious physical harm.) Five of the serious citations were related to the accident and the company's violation of the tree removal standard, such as the company failure to maintain an Injury and Illness Prevention Plan or a written Heat Illness Prevention Program, according to Cal/OSHA. "When safety takes a backseat to the bottom line, tragedies such as this one will result," said acting Cal/OSHA Chief Juliann Sum in a press release. "Companies that cut corners by not abiding by workplace safety regulations put their employees at direct risk of numerous hazards."

The state Division of Labor Standards Enforcement ordered the company to stop work on Nov. 13 after the state Labor Commissioner found the company failed to provide worker's compensation coverage for its employees. The stop order will remain in place until Three Frogs demonstrates that a workers' comp policy is in effect, regulators said. The investigation into labor practices is ongoing, and regulators also have an ongoing criminal investigation.
...

The head of a private security firm once charged with monitoring Oldtown Salinas was sentenced to five years’ probation and 120 days in jail, according to the Monterey County District Attorney’s Office. Anthony Vincent Perez, a.k.a. Tony Vincent, was arrested in April 2013 on nine charges related to business, insurance and tax fraud and evasion. In February, he pleaded no contest to two felonies and a misdemeanor in the case.

Local prosecutors said they were tipped off in December 2012 that Perez was paying his employees in cash and operating without workers’ compensation insurance. The investigation revealed Perez hadn’t registered with nor reported employee wages to the Employment Development Division since 2006, when he went into business, prosecutors said. Perez further misclassified his guards as independent contractors rather than employees as required by the Bureau of Security and Investigative Services and provisions regulating Private Patrol Operators, prosecutors said.

During the investigation, Perez obtained workers’ compensation insurance through the State Compensation Insurance Fund by making material misrepresentations to obtain a lower premium, prosecutors said.

DA Investigator Martin Sanchez, California Department of Insurance Detective Stuart Rind and Bureau of Security and Investigative Services Investigator Laura Jestes teamed up to investigate the case.

Perez was placed on five years’ felony probation. He was also ordered to serve 120 days in the Monterey County Jail, to complete 200 hours of community service and pay $18,000 fines.

Restitution will be determined May 15 ...

The Division of Workers’ Compensation (DWC) has posted a proposed "Guideline for the Use of Opioids to Treat Work-Related Injuries" to its online forum. Members of the public may review and comment on the proposal until April 21, 2014.

"Opioid misuse is a national concern. California is on the forefront of providing appropriate care and improving outcomes by issuing these guidelines," said Department of Industrial Relations Director Christine Baker.

Currently, the Medical Treatment Utilization Schedule (MTUS) addresses the use of opioids in the Chronic Pain Medical Treatment Guidelines. DWC intends to remove the existing parts of the MTUS that refer to opioid use and instead revise the MTUS to include this proposed guideline. "We created separate guidance for the use of opioids in the California workers’ compensation system to highlight the importance of appropriately treating workers in pain while also ensuring safety when using these medications," said DWC Executive Medical Director Dr. Rupali Das. "A key goal of this guideline is to ensure restoration of function and early return to work following an injury."

The proposed "Guideline for the Use of Opioids to Treat Work-Related Injuries" was developed in cooperation with the multidisciplinary Medical Evidence Evaluation Advisory Committee (MEEAC). The recommendations are derived from the best available evidence-based guidelines and scientific studies. The proposed guideline provides a set of best practices for considering opioids in the management of acute, subacute, post-operative, and chronic pain related to work-related injuries. Recommendations include when it is appropriate to consider adding opioids to the treatment regimen; medications to avoid when using opioids; methods and tools to monitor patients on opioids; the need to educate patients about the adverse effects of opioid use; and responsible storage and disposal of opioids. In addition, useful tools and resources for patient management are provided. The guideline is divided into four parts: Part A, a summary, abbreviated treatment protocols, and introduction; Part B, complete recommendations, and appendices containing useful tools; Part C, findings to support the recommendations; and Part D, a compilation of recommendations from a review of existing guidelines.

The Guideline is comprehensive. Part B is 104 pages. A number of provisions are a "step forward" from our current MTUS provisions. For example, one of the new concepts of the guideline states "If opioids are prescribed, the Controlled Substance Utilization Review and Evaluation System (CURES), California’s Prescription Drug Monitoring Program should be accessed. If CURES indicates the simultaneous use of other narcotic medication, opioid use may be contraindicated."

Use of the CURES database to determine if a patient is abusing opioid medication or not providing an accurate history is well intentioned. Use of drug databases are becoming the national standard, and a well accepted tool to curb some abuse. However, the proposed Guideline uses the term "should" throughout the document which waters down the proposed regulation. In this regard the Guideline takes two steps backward. The term "should" means a person is "encouraged" to do something while "must" and "shall" mean they are required to do it. The main use of should in modern English is as a synonym of ought to, expressing quasi-obligation, appropriateness, or expectation. When used in statutes, contracts, or the like, the word "shall" is generally imperative or mandatory. Hence, a medical practitioner is not required to follow many of the provisions of the new Guideline, and can simply avoid any regulatory language preceded by the term "should."

The MTUS regulations can be found in Title 8 of the California Code of Regulations, beginning with section 9792.20. The proposed guidelines will be in a new section, 9792.24.4. The forum can be found online on the DWC forums web page ...

A North Hollywood woman who pleaded guilty in January to health care fraud was sentenced Monday to six years in federal prison and ordered to pay nearly $10 million restitution to Uncle Sam.

Susanna Artsruni, 46, whose Midvalley Medical Supply of Van Nuys had submitted nearly $25 million in bogus bills to Medicare, was sentenced by U.S. District Judge Margaret M. Morrow, according to the U.S. Attorney’s Office. Artsruni, who also used the names "Mary" and "Rose,"worked at a number of medical clinics in Los Angeles.

She was sentenced after pleading guilty earlier this year to one count of health care fraud and one count of money laundering. She was ordered to serve 76 months in prison and to pay $9,624,556 in restitution to Medicare.

In her plea agreement, Artsruni admitted to billing Medicare for services and supplies that were medically unnecessary and sometimes never provided. The scheme involved physician’s assistants at three Los Angeles medical clinics who signed prescriptions and orders for unnecessary tests, services and equipment. She also admitted to writing checks of more than $35,000 from the Midvalley bank account to three corporations that had no connection to the medical industry and apparently had not provided any legitimate business services to her company. The checks, she admitted, were meant to launder funds related to the welfare fraud. At the time, Artsruni was free on bond in another health care fraud case whose terms ordered her not to work at any medical facility.

A second defendant in the case, Erasmus Kotey, a physician’s assistant, has pleaded guilty and is scheduled to be sentenced Sept. 8, according to the U.S. Attorney’s Office. Charges have been filed to three others allegedly associated with the money laundering, who have pleaded not guilty for a trial expected early next year ...