A Sacramento Superior Court judge ruled that the Sacramento Bee misclassified its newspaper carriers as independent contractors when they were, in fact, employees. Judge Gerrit Wood found the newspaper had the right to control the manner and means of how the carriers performed their duties, making them employees under the law.

According to the story in Bizjournal, the Sacramento Bee plans to contest the ruling. Publisher and president Cheryl Dell called it a "bewildering" and "a failure of justice. The Bee is extremely disappointed in the decision and strongly believes that the individual newspaper carriers were properly classified as independent contractors," Dell said in a statement. "Our classification of carriers as independent contractors is in full compliance with regulations issued directly to the newspaper industry by the state of California."

Whether workers are employees or independent contractors is a hot issue in California and nationwide because it affects the cost of doing business and protections for workers. Employers do not pay unemployment, state disability and or workers’ compensation taxes for independent contractors, which means significantly lower payroll taxes and, potentially, a competitive edge when bidding for work.

Misclassification means payback time that can run in the millions. When litigation is protracted - as it is in this five-year-old class action - attorneys' fees and court costs get cranked up, too.

The fight in this case was narrowed over time to whether carriers who worked for the Sacramento Bee any time between 2005 and 2009 should be reimbursed for mileage expanses because they were incorrectly classified as independent contractors. The decision follows a nine-week trial in Sacramento Superior Court earlier this year. With more than 5,100 people in the class, the mileage tab could be more than $21 million Callahan said.

How much The McClatchy Co., parent company to The Sacramento Bee, has paid lawyers to defend the case is unknown. But plaintiffs’ attorneys costs so far are more than $12 million - and McClatchy often had four or more lawyers in court, Callahan said.

"We got the decision," said John Poulos, the Sacramento attorney who represents the newspaper. "In our view, it’s problematic and lowers the state of California regulations that govern newspaper carriers relative to employment or independent contractor status. Our evidence at trial showed the Bee complied." If the tentative decision holds, plaintiffs’ attorneys will have to provide records that document the mileage expenses, Poulos said. Then the newspaper can file an appeal. An appeal cannot be filed until the decision is finalized. If there is not an appeal, the case moves to the damages phase.

Filed in 2009, the cases goes back to 2005 because there is a four-year statute of limitations. The issue doesn’t apply after 2009 because the newspaper gradually shifted to a third-party distribution channel. Distribution was mixed during the time period of the lawsuit ...

The Acting Administrative Director of the Division of Workers’ Compensation (DWC) has amended Title 8, Code of Regulations Section 9789.32 of the hospital outpatient departments and ambulatory surgical centers (HOPD/ASC) fee schedule regulations . The amendment was filed with the Secretary of State on September 23, 2014.

The amendment corrects the payment methodology formula set forth in Section 9789.32(1)(c)(B)(ii) for service s rendered on or after September 1, 2014.

As set forth in Labor Code section 5307.1(c)(1), the maximum facility fee for services performed in a hospital outpatient department, shall not exceed 120 percent of the fee paid by Medicare for the same services performed in a hospital outpatient department. Senate Bill 863 also required that for services rendered in ambulatory surgical centers on or after January 1, 2013, the maximum facility fee shall not exceed 80 percent of the fee paid by Medicare for the same services performed in a hospital outpatient department.

Effective Jan. 1, 2013, the Acting Administrative Director amended the HOPD/ASC fee schedule (Title 8, California Code of Regulations, sections 9789.30 et seq.), to implement Senate Bill 863 as it relates to the OMFS HOPD/ASC fee schedule.

In March of 2014, the Division initiated a rulemaking action to amend the HOPD/ASC fee schedule as follows: 1. Transition payment policies from the pre-2014 OMFS physician fee schedule to the OMFS RBRVS-based physician fee schedule; 2. Eliminate the alternative payment methodology for hospital outpatient and ASC services rendered on or after September 1, 2014; and in accordance with changes to Medicare’s fee-related structure and payment rules for the hospital outpatient departments prospective payment system (OPPS), adjust the Workers’ Compensation Multiplier (which included the additional percentage added to the Medicare Multiplier for outliers).

On May 22, 2014, after considering public comments received during a public hearing and one written comment period, the Acting Administrative Director submitted the amended regulations to the Office of Administrative Law for file and print only. The amended regulations were filed with the Secretary of State on June 3, 2014. The regulations are effective for services rendered on or after September 1, 2014.

The objective of the current rulemaking action is to amend the OMFS HOPD/ASC fee schedule to correct the payment methodology for "Other Services" that are paid according to the RBRVS Practice Expense relative value units. The RBRVS conversion factor should be applied in the payment methodology instead of the HOPD/ASC Workers’ Compensation Multiplier that was adopted by the HOPD/ASC fee schedule regulations. Correcting the payment methodology to include the application of the RBRVS conversion factor is beneficial because payment would otherwise be incorrectly calculated.

This amendment is necessary to correct the formula to include the application of the RBRVS Conversion Factor instead of the HOPD/ASC Workers’ Compensation Multiplier, otherwise erroneous payment calculations will occur for this group of services. The current formula incorrectly uses the HOPD/ASC multiplier when the services are paid according to the RBRVS-based physician services fee schedule payment factors. Without application of the RBRVS conversion factor, the Practice Expense relative values could not be converted into a dollar amount. (The RBRVS conversion factor takes into account the multiplier.) ...

A Los Angeles County Probation officer was arrested Tuesday for allegedly filing false workers' compensation documents, according to L.A. County Probation Chief Jerry Powers.

Cynthia Wesley, a detention officer assigned to Central Juvenile Hall, was arrested at 10:30 p.m. Tuesday night on one count of filing a fraudulent insurance claim and one count of falsifying worker's compensation documents, Powers told KPCC, adding that Wesley was booked into Temple City Sheriff's station Tuesday night and was released on Wednesday on $60,000 bail.

KPCC reported last week on abuse of workers' compensation and disability policies among county probation officers.

Powers said Probation Department officials made the arrest in conjunction with the Los Angeles County Sheriff's Department.

Wesley's disability claim was labeled as suspicious by county probation investigators in May, according to Powers. A closer look by both probation and California Department of Insurance investigators revealed Wesley allegedly "manufactured" some of the claim forms she submitted to a supplemental disability insurance company to get benefits the department says she wasn't entitled to ...

Your medical information is worth 10 times more than your credit card number on the black market.

Last month, the FBI warned healthcare providers to guard against cyber attacks after one of the largest U.S. hospital operators, Community Health Systems Inc,, with facilities nationwide and in California, said Chinese hackers had broken into its computer network and stolen the personal information of 4.5 million patients. Security experts say cyber criminals are increasingly targeting the $3 trillion U.S. healthcare industry, which has many companies still reliant on aging computer systems that do not use the latest security features. "As attackers discover new methods to make money, the healthcare industry is becoming a much riper target because of the ability to sell large batches of personal data for profit," said Dave Kennedy, an expert on healthcare security and CEO of TrustedSEC LLC. "Hospitals have low security, so it's relatively easy for these hackers to get a large amount of personal data for medical fraud."

Interviews with nearly a dozen healthcare executives, cybersecurity investigators and fraud experts provide a detailed account of the underground market for stolen patient data. The data for sale includes names, birth dates, policy numbers, diagnosis codes and billing information. Fraudsters use this data to create fake IDs to buy medical equipment or drugs that can be resold, or they combine a patient number with a false provider number and file made-up claims with insurers, according to experts who have investigated cyber attacks on healthcare organizations.

Medical identity theft is often not immediately identified by a patient or their provider, giving criminals years to milk such credentials. That makes medical data more valuable than credit cards, which tend to be quickly canceled by banks once fraud is detected. Stolen health credentials can go for $10 each, about 10 or 20 times the value of a U.S. credit card number, according to Don Jackson, director of threat intelligence at PhishLabs, a cyber crime protection company. He obtained the data by monitoring underground exchanges where hackers sell the information.

The percentage of healthcare organizations that have reported a criminal cyber attack has risen to 40 percent in 2013 from 20 percent in 2009, according to an annual survey by the Ponemon Institute think tank on data protection policy. Founder Larry Ponemon, who is privy to details of attacks on healthcare firms that have not been made public, said he has seen an increase this year in both the number of cyber attacks and number of records stolen in those breaches. Fueling that increase is a shift to electronic medical records by a majority of U.S. healthcare providers.

Marc Probst, chief information officer of Intermountain Healthcare in Salt Lake City, said his hospital system fends off thousands of attempts to penetrate its network each week. So far it is not aware of a successful attack. "The only reason to buy that data is so they can fraudulently bill," Probst said.

Healthcare providers and insurers must publicly disclose data breaches affecting more than 500 people, but there are no laws requiring criminal prosecution. As a result, the total cost of cyber attacks on the healthcare system is difficult to pin down. Insurance industry experts say they are one of many expenses ultimately passed onto Americans as part of rising health insurance premiums. Consumers sometimes discover their credentials have been stolen only after fraudsters use their personal medical ID to impersonate them and obtain health services. When the unpaid bills are sent on to debt collectors, they track down the fraud victims and seek payment.

The government's efforts to combat Medicare fraud have focused on traditional types of scams that involve provider billing and over billing. Fraud involving the Medicare program for seniors and the disabled totaled more than $6 billion in the last two years, according to a database maintained by Medical Identity Fraud Alliance. "Healthcare providers and hospitals are just some of the easiest networks to break into," said Jeff Horne, vice president at cybersecurity firm Accuvant, which is majority-owned by private equity firm Blackstone Group. "When I've looked at hospitals, and when I've talked to other people inside of a breach, they are using very old legacy systems - Windows systems that are 10 plus years old that have not seen a patch." ...

The former owner of a Long Beach, California, medical supply company was sentenced to serve 30 months in prison and ordered to pay $1,490,532 in restitution for his role in a scheme to provide unnecessary power wheelchairs to Medicare patients, resulting in $2.6 million in fraudulent claims to Medicare.

According to court documents, Akinola Afolabi, 55, of Long Beach, California, was the owner and president of Emmanuel Medical Supply, a durable medical equipment supply company in Long Beach. From June 2006 through September 2009, Afolabi provided medically unnecessary power wheelchairs and other medical equipment to Medicare beneficiaries, and submitted fraudulent claims to Medicare for this equipment. Afolabi admitted that he paid "marketers" to obtain Medicare beneficiary information that he used on the false claims. Afolabi admitted that prescriptions for the equipment and related medical documents were fraudulent, and that some of the beneficiaries did not even receive the wheelchairs or other medical supplies that were billed.

From June 2006 through September 2009, Afolabi submitted approximately $2,668,384 in fraudulent claims to Medicare for power wheelchairs and related services, and Medicare paid approximately $1,490,532 on those claims.

The case was investigated by the FBI and was brought as part of the Medicare Fraud Strike Force, supervised by the Criminal Division’s Fraud Section and the U.S. Attorney’s Office for the Central District of California. This case is being prosecuted by Trial Attorney Fred Medick of the Criminal Division’s Fraud Section ...

Individuals living in disadvantaged neighborhoods have worse musculoskeletal pain outcomes over time after stressful events such as motor vehicle collision than individuals from higher socioeconomic status neighborhoods, even after accounting for individual characteristics such as age, sex, income, education, and employment status. Since apportionment under SB 899 is based upon "causation", medical evaluators may wish to consider this study when determining the actual cause behind an the AMA Guides pain add-on rating.

According to the summary by the University of North Carolina School of Medicine, individuals living in disadvantaged neighborhoods have worse musculoskeletal pain outcomes over time after stressful events such as motor vehicle collision than individuals from higher socioeconomic status neighborhoods, even after accounting for individual characteristics such as age, sex, income, education, and employment status.

These were the findings of a multi-site research study led by Samuel McLean, MD, MPH, associate professor of anesthesiology and emergency medicine at the University of North Carolina School of Medicine. The results of the study were published online by the journal Pain. "We all like to believe that we are immune to the circumstances of our environment," said Dr. McLean. "These results suggest that when it comes to chronic musculoskeletal pain development after traumatic/stressful events, the poet John Donne was right " ‘No man is an island.' "

The investigators enrolled 948 European-American individuals who presented to emergency care centers in four U.S. states for evaluation after car accidents. Patients were enrolled at the time of their presentation for emergency care, and then received follow-up evaluation at 6 weeks, 6 months, and 12 months. Approximately 90 percent of participants completed follow up at each time point.

Information regarding each study participant’s neighborhood environment was determined by geocoding their home address to a "census tract." A census tract is the smallest territorial unit for which population data are available in the U.S. Census tract data was then used to determine neighborhood socioeconomic status using the Socioeconomic Position Index. This index generates a total score by averaging scores of the following measures: percent unemployed, percent below the U.S. poverty line, percent with high school education or less, percent of expensive homes (owner-occupied homes worth $300,000 or more) in the neighborhood, and median household income.

After adjusting for individual-level factors including participant sex, age, highest level of educational attainment, family income, and employment status, living in a more disadvantaged area was found to increase pain burden in the months after the car accident. Results remained significant after adjustment for receiving opioids at the time of emergency care, litigation status, obesity (body mass index), at-risk drinking habits prior to the accident, and mental health status prior to the accident.

There are many ways that living in a poor neighborhood might increase pain across time after a car accident. One potential factor is that living in a disadvantaged neighborhood increases stress and has been shown to affect the function of an individual’s stress (i.e., "fight or flight") system. To test this hypothesis, the investigators collected blood samples from participants, and evaluated whether those participants with a common genetic variant which makes one more vulnerable to stress were more affected by the adverse effect on pain of living in a disadvantaged environment. The investigators found that this was the case: those without the genetic variant were relatively unaffected, whereas those with the gene had large and clinically significant differences in pain outcomes depending on their neighborhood environment.

"This finding suggests that the increased stress of living in a disadvantaged neighborhood affects biological systems in the body in ways that increase pain and worsen pain outcomes," said Dr. McLean. "These results also add further evidence that stress systems are involved in the development of chronic pain. This is really important, because we have to understand the biology in order to be able to develop better preventive interventions."

First author of the study is Jacob Ulirsch, BS, a former collaborator in Dr. McLean's lab. UNC co-authors include Mark A. Weaver, PhD, research assistant professor in the UNC Gillings School of Global Public Health; and Andrey V. Bortsov, research assistant professor in the UNC Department of Anesthesiology. This research was supported by a grant R01 AR056328 from the National Institutes of Health ...

The Affordable Care Act continues to divide Californians, who remain skeptical four years after its passage despite the state’s relatively smooth launch in which more than 1.2 million people enrolled in health insurance coverage.

A new survey released late Tuesday found some 42 percent of state residents generally view the law favorably, while 46 percent harbor unfavorable opinions. Support is down somewhat since May, before a wave of targeted TV ads began in a handful of competitive congressional districts.

Democrats view the law positively while an overwhelming majority of Republicans (80 percent) see it unfavorably. Of the 1 in 5 Californians who say that they were aided by the law, 31 percent say that it allowed them or a family member to obtain or retain health care. Meanwhile, of the 1 in 5 who said they have been harmed by the law, more than half reported it led to higher costs while about 20 percent say it made it more difficult to get coverage.

The survey, by the Public Policy Institute of California, also determined likely voter sentiment on other major issues: ...

Workers’ compensation costs continue to rise as the City of Santa Monica spent $6.9 million on injured employees in fiscal year 2013-14. Costs grew 12 percent, or $850,000, over the previous year, according to city risk managers. According to the report in the Santa Monica Daily Press, claim frequency remains high and older city employees in physically demanding jobs are experiencing more severe injuries. These older employees are requiring costly and intensive medical treatment, like back surgeries and knee replacements. Even city officials tasked with handling these matters are having medical problems: Two employees in the Workers’ Compensation Unit were out on extended (non-industrial) medical leave.

"Relative to indemnity payments, the Workers’ Compensation Reform legislation enacted by the State in 2012 increased the permanent disability benefit payment schedule by 30 (percent) over a two year period," city officials said. Most of the administrative costs stayed the same, with the exception of legal costs, which rose 11 percent. If the worker hires legal representation, city officials said, they are, in turn, required to hire one.

Medical costs made up $3.6 million worth of total costs. Lost wages and residual impacts from injuries comprised another $3.3 million. Of the latter category, about half, $1.6 million, covered temporary disabilities while the other half, about $1.7 million, covered permanent disabilities. There were 86 claims settled last fiscal year compared to 55 settlements in the year before. "The City is controlling what it can," the report said. "These efforts, however, are not sufficient to offset the financial impact of the internal/external factors dogging the program. Given this, Risk Management staff expects the City’s workers’ compensation costs to continue to rise. There are no ‘magic bullets’ to reverse this trend in the short-term, and as such, the City can expect to increase its contribution to the Workers’ Compensation Self Insurance Fund during the next two-year budget cycle."

The rising costs, city officials said, are not going to disappear. "Staff predicts this trend will continue into the next two-year budget cycle and result in higher contributions to the Workers’ Compensation Self Insurance Fund," they said. City officials have, they said, saved some money by making some changes. They are, for instance, returning injured employees to modified positions while they recover. This program saved nearly a quarter million dollars according to the report. "The City also revamped the medical bill review process and selected a new medical bill review provider this past year," city officials said. "The new provider enables the City to obtain better pricing on medical procedures through accessing more cost-effective insurance plans." This move saved between $100,000 and $200,000 according to city officials ...

The changes to theMedical Provider Network (MPN) regulations became effective on August 27, 2014. The Division of Workers’ Compensation (DWC) is required to assign a unique MPN ID number to each approved MPN within 90 days of the effective date of the revised MPN regulations. The assigned MPN ID number for each approved MPN can be found on the DWC website in the "DWC Assignment of Unique Medical Provider Network Identification Numbers" report. Please note an MPN ID number has been assigned to all MPNs that have been approved regardless of their current approval status.

The DWC will no longer accept paper submissions of MPN Applications, Plans for Reapproval, or Notice of Medical Provider Network Plan Modifications. All submissions to the DWC must be on compact discs or flash drives in a word-searchable PDF format. The updated fillable form Cover Page for Medical Provider Network Application or Plan for Reapproval [DWC Mandatory Form - Section 9767.4 - 08/14] and the updated fillable form Notice of Medical Provider Network Plan Modification §9767.8 [DWC Mandatory Form - Section 9767.8 - 8/14] can be found online.

Although the filing of a Notice of Medical Provider Network Plan Modification is only required for a material change to an MPN as set forth in §9767.8, all MPNs must comply with the amended MPN regulations. Current MPNs must be prepared to provide the DWC with an explanation of how they are complying, if requested. For example, MPNs should be able to provide the URL to their Internet website and their roster of treating physicians if requested by DWC. In addition, MPNs should be able to provide MPN medical access assistant contact information if requested by DWC.

The DWC is currently updating the MPN FAQs and will post the revised FAQs soon ...

Alan Moelleken, M. D., a member of the State Fund's MPN, recommended that applicant, Rochelle Stock, be furnished with a hospital bed for her home as treatment for her admitted 1990 injury. The request was denied after a 5/13/2014 review by Daniel Weinberg, M. D./ EK Health, the State Fund's Utilization Review report. At a hearing brought to obtain this recommended care, Stock objected to the admission of the UR report claiming it was "inadmissible because the treatment denied was recommended by a physician in defendant's Medical Provider Network." The WCJ ruled the UR report was admissible and denied the request for this medical treatment in a June 20, 2014 Finding and Award.

Applicant filed a petition for reconsideration. The WCAB dismissed the petition for reconsideration, since the WCJ's determination was not a final order subject to reconsideration. Instead it treated applicant's petition as seeking removal to the Appeals Board. After removal the WCAB affirmed the WCJ's Findings and Award in the panel decision of Stock v Camarillo State Hospital.

The WCAB concurred with the WCJ that applicant's required participation in her employer's MPN does not prohibit defendant from referring an MPN physician's request for authorization of medical treatment to UR and Independent Medical Review. Contrary to applicant's contentions, by its adoption of the MPN system, the Legislature did not evince an intent to preclude a defendant from seeking UR review of an MPN physician's request for authorization of medical treatment. The law and the implementing administrative rules provide mechanisms for review of disputed treatment recommendations through UR, whether or not the treating physician is in the employer's MPN. Both the UR provisions and the MPN provisions of the Labor Code provide that a treating physician's request for authorization of medical treatment must be reviewed by a physician competent to evaluate the specific clinical issues, without distinction as to whether the physician is selected through the MPN. (Cf. Labor Code section 461 O(e) and Labor Code section 20 46 I 6(f).) Similarly, the definition of a primary treating physician in Administrative Director's Rule 9767.1 and Rule 9785(a)(J) both include a physician within an MPN.

When a defendant does not approve a treatment request from applicant's primary treating physician, the defendant must refer the request to a UR physician. Here, Dr. Moelleken's request that applicant be provided a hospital bed was clearly intended to provide applicant relief from the effects of her industrial injury under the terms of her award of further medical treatment. She has had a two level lumbar fusion, suffers from radiculopathy, Grade 2 spondylolisthesis with instability and foraminal stenosis at two levels above the fusion. Applicant cannot sleep on a flat bed and has been sleeping in a recliner. She has been trying to obtain a hospital bed for four years. In all of that time, she has not been able to enjoy a restful night sleep.

The UR denial of the request for a hospital bed was based upon "silence" in the MTUS guidelines, and the absence of "high quality studies" and "no exceptional factors ... in the documentation submitted to consider this request as an outlier to the guidelines. There is no other documentation to support the medical necessity of a hospital bed. As such, the medical necessity of the request has not been established and the request is non-certified."

The WCAB noted that there is a hierarchy of standards to be applied to a review of the medical necessity of a request for approval of medical treatment, under Rule 9792.10.1 ( 4)(A)-(F). If the MTUS is "silent," and there is no "peer-reviewed scientific and medical evidence," the reviewer may consider nationally recognized professional standards, expert opinion, generally accepted standards of medical practice and "treatments that are likely to provide a benefit to a patient for conditions for which other treatments are not clinically efficacious." It does not appear that the UR denial considered whether other standards may be applicable, as there was insufficient documentation or explanation provided to support the efficaciousness of Dr. Moelleken's request. Further review of this request will be by Independent Medical Review ...

In physical injury cases, SB 863 precludes permanent disability awards that add on the effects of psychiatric consequences. It is unclear how far this new law will apply to what begins as a physical injury that is later complicated by a mental rather than a physical cause.

For example, new research summarized in Reuters Health claims that brain scans show that people with the pain disorder fibromyalgia react differently to what others would consider non-painful sights and sounds. The small new study provides clues to what might be going wrong in the nervous system of people with fibromyalgia, along with possible new approaches to alleviating their pain. "If we understand the mechanism, we may come up with new and potentially better forms of treatment," said lead author Marina López-Solà of the department of Psychology and Neuroscience at the University of Colorado, Boulder.

Fibromyalgia, which patients experience as widespread muscle pain and fatigue, affects as many as five million Americans, most commonly middle-aged women, according to the U.S. Department of Health and Human Services. Its cause is unknown and there is no cure, but medications can treat the symptoms. The new results suggest not only that fibromyalgia is related to greater processing of pain-related signals, but also potentially to a misprocessing of other types of non-painful sensory signals that may be important to address during treatment, Lopez-Sola told Reuters Health by email.

She and her team used "functional magnetic resonance imaging," which measures blood flow changes in the brain, to assess brain responses among 35 women with fibromyalgia and 25 similar women without the disorder. The fibromyalgia patients were more sensitive to non-painful stimulation compared to people without the disorder, they report in the journal Arthritis and Rheumatism.

What seems to be happening is that the brains of fibromyalgia patients are under-processing certain forms of sensory information at the first stages of processing, but are also amplifying the signal at a later level of sensory integration of multiple sensory inputs, Lopez-Sola said. "When you are in pain, it is probable that you are more concentrated on your own pain than on the tasks you have to pay attention to," said Dr. Pedro Montoya of the Research Institute on Health Sciences at the Universitat Illes Balears in Palma de Mallorca, Spain, who was not part of the new study. "For me, these findings provide further support for the idea that psychological strategies aimed at changing the focus of attention from the body to external cues could be useful for these patients," Montoya said.

People with fibromyalgia often also have conditions like depression, so some people believe the disorder has a mental basis, said Michael E. Geisser, professor in the department of physical medicine and rehabilitation at the University of Michigan in Ann Arbor. But evidence for a neuro-anatomical basis for fibromyalgia is growing, said Geisser, who was not part of the new study. "There is increasing evidence that fibromyalgia is not just a pain condition," he told Reuters Health by email. "More recent research done on persons with fibromyalgia, such as the research by Lopez-Sola and colleagues, suggests that persons with fibromyalgia suffer from a central processing deficit of multiple types of sensory stimuli, not just pain." "It’s as if the volume control for sensation in persons with fibromyalgia is turned up, or louder, for many types of sensation compared to persons without the disorder," he said. That might help explain why many people with fibromyalgia also often suffer from fatigue, cognitive problems or mood disturbance, Geisser said.

Currently, people with the disorder can take anticonvulsant medications, such as pregabalin (Lyrica), and antidepressants such as duloxetine (Cymbalta) and milnacipran (Savella), which have been FDA approved for treating fibromyalgia. Further research to improve understanding of where there are problems in the brain for people with the disorder could lead to the development of new treatments, Geisser said. For example, it would be interesting to see if a treatment targeted at dampening response in an area of the brain that "overreacted" in this study helped to treat fibromyalgia symptoms, he said.

Thus, the evolving scientific concepts of the roots of fibromyalgia may be a precursor to use of the SB 863 limits on psychiatric add-ons to lower permanent disability awards in fibromyalgia cases ...

Southern California Public Radio - KPCC - reviewed hundreds of Probation Department workers’ compensation files from 2010-2012 and claims it found dozens of questionable cases. Chief Probation Officer Jerry Powers responded by stressing that the vast majority of workers’ compensation claims are legitimate, but he has taken several steps to crack down on questionable injuries since taking office in 2011. Since then, the number of probation staff on disability has dropped by one third, Powers says. Questionable workers’ compensation and disability claims, he says, were one of the first things the L.A. County Board of Supervisors asked him to tackle when he came to probation.

When Powers started on the job, 15 percent of the workforce--about 750 people--were out on workers’ compensation or reassigned due to on-the-job injuries, he says. "It makes my blood boil." Powers maintains the problem of fraudulent claims is "epidemic" in the department--although officials there say they don’t have hard numbers on the percentage of claims believed to be illegitimate. Cynthia Maluto, who oversees return to work efforts at probation says "I’ve looked up cases where the employee will be off a whole year, come back for one day and then go off another year and come back, file another claim, [and] could be off for two years. And in the 20 years of service they probably worked three months."

To tackle the problem, the supervisors ordered Powers to use an investigative model first developed by the L.A. County Sheriff’s Department. First, he beefed up the unit that investigates claims. He told the team to "start scrutinizing doctors’ notes, questioning restrictions and limitations and frankly, if necessary, videotaping staff doing things they say they can't," Powers recalls. "Before I got here, when employees were injured they could take cruises, they could come and go as they pleased," he says. "We put in a requirement they have to be home between 8 a.m. and 5 p.m." Probation now has a dedicated team checking up on employees who are out on workers’ compensation and disability claims. The team makes home visits to make sure employees are there when they should be. It follows up on claims it considers questionable, and can mount challenges based on its investigations.

Alex Rossi of the L.A. County CEO’s office says the number of claims skyrocketed after 2000, when probation officers became eligible for 4850--a law designed to counterbalance the risk of working in public safety with up to one year of full, tax-free salary while on workers’ compensation leave.

Union steward Cline says Powers’ move to crack down on workers who are faking injuries is more about politics than tackling a major departmental problem. Many workers stay out for long stretches simply waiting to get care within the slow-moving workers’ compensation system, Cline says. "I see those cases more than I see the others," she adds. But the probation department’s management sees qualified success in the crackdown-- Powers says since he took office, the number of employees out on workers' compensation has gone down by roughly one third, from about 750 to about 500. And he says the number of 4850 cases has dropped by 25 percent.

When it comes to gaming the system, probation chief Powers says one of his biggest problems is staff taking out separate private disability policies. "Several times we’ve found employees who will falsify medical notes and send them to these insurance companies and tell them they are injured and off duty for months at a time," he says. The problem, says Powers, is that "they are not off duty. They are drawing a paycheck at the same time they are collecting a check from these insurance companies. And some of these employees will have two, three, four separate policies." This can be lucrative, with workers doubling or tripling their salaries, according to Powers. "We know everyone who has those policies and we are working with the insurance companies to cross check those policies," he says. That cooperation has resulted in the arrests of two probation workers for allegedly collecting disability checks while they were still on the job, Powers says ...

The general manager of a Southern California ambulance company pleaded guilty in Los Angeles to conspiracy to commit Medicare fraud, conspiracy to obstruct a Medicare audit, and making materially false statements to law enforcement officers.

Wesley Harlan Kingsbury, 34, of Bloomington, California, pleaded guilty to the charges before U.S. District Judge Dale S. Fischer. Sentencing is scheduled for Feb. 9, 2015.

According to court documents, Kingsbury was the general manager of Alpha Ambulance Inc., which specialized in the provision of non-emergency ambulance transportation services to Medicare beneficiaries, primarily to and from dialysis treatments. Between April 2010 and July 2012, Kingsbury conspired with Alex Kapri and Aleksey (Russ) Muratov, the owners of Alpha Ambulance, as well as the training supervisor Danielle Medina, to bill Medicare for ambulance transportation services for individuals that Kingsbury knew did not need to be transported by ambulance. In addition, as general manager, Kingsbury instructed emergency medical technicians (EMTs) that worked at Alpha Ambulance to conceal the true medical condition of patients they were transporting by altering requisite paperwork and creating false reasons to justify the transportation services.

In early 2012, Medicare notified Alpha Ambulance that the company would be subject to a Medicare audit. In response, Kingsbury and his co-conspirators altered patient documentation to create false justifications for the ambulance transportation services. Kingsbury and others used light tracing tables to trace over original documents and create falsified patient documentation for the purpose of sending those falsified documents to Medicare, and then they used a paper shredder to destroy the original patient documents.

Kingsbury and his co-conspirators submitted $5,522,079 in fraudulent claims to Medicare, and Medicare paid $1,338,413 on those fraudulent claims.

Further according to court documents, in April 2012, Kingsbury was approached by law enforcement officers and was asked to assist with the investigation into Alpha Ambulance. Kingsbury disclosed to the owners of Alpha Ambulance the names of the law enforcement officers who were conducting the investigation and the questions they had asked Kingsbury about the company. On May 1, 2012, Kingsbury falsely denied to the law enforcement agents that he had previously disclosed that information to the owners of Alpha.

Kapri, Muratov and Medina pleaded guilty to conspiracy to commit health care fraud on October 28, 2013. They were sentenced to terms of imprisonment of 75 months, 108 months, and 30 months, respectively.

The case was investigated by the FBI and the Los Angeles Region of HHS-OIG and was brought as part of the Medicare Fraud Strike Force, supervised by the Criminal Division’s Fraud Section and the U.S. Attorney’s Office for the Central District of California. The case was prosecuted by Trial Attorneys Blanca Quintero and Alexander F. Porter and Assistant Chief Ben Curtis of the Criminal Division’s Fraud Section ...

In September 2006, Massoud Kaabinejadian filed a workers’ compensation claim - based on work-related stress and discrimination - which was ultimately denied because his length of employment was only 177 days and less than the six months required by the Labor Code. (Lab. Code, § 3208.3, subd. (d).) Kathaleen Miller served as opposing counsel, representing Rabobank, his employer, and its workers’ compensation insurer. On behalf of her clients, Miller contended Kaabinejadian was properly terminated for aggression toward coworkers and creating a hostile work environment. Miller served a medical record subpoena on Kaabinejadian's medical provider seeking information about his alleged injuries. After his claim was denied, Miller also prepared and filed a response to his WCAB petition for reconsideration.

In May 2012, Kaabinejadian filed a civil complaint for abuse of process and breach of privacy against Miller. For the first cause of action, he alleged that Miller’s answer to his petition for reconsideration falsely stated that plaintiff had tried to assault a witness, Cheryl Walker, during the workers’ compensation hearing on May 18, 2011. Plaintiff asserted that Miller had made the statements in the answer to retaliate against him. For the second cause of action, plaintiff alleged that Miller had wrongfully subpoenaed his medical records, again as retaliation.

In July 2012, Miller filed a special motion to strike the civil lawsuit pursuant to Code of Civil Procedure section 425.16, asserting that Miller’s litigation conduct constituted participation in a protected activity and plaintiff could not demonstrate a probability of success because Miller’s conduct was subject to the litigation privilege afforded by Civil Code section 47 ("section 47").

Miller submitted a declaration, describing the facts of her representation during the workers’ compensation proceeding - including that she had subpoenaed medical records from plaintiff’s treating physician and that she had witnessed plaintiff try to assault Walker, the human resources director for Rabobank. In her answer to plaintiff’s petition, Miller stated that plaintiff had demonstrated "anger and aggressive behavior" at the workers’ compensation hearing: "Following the conclusion of testimony by Cheryl Walker . . . the applicant sprang to his feet and attempted to assault the witness. But for the actions of Mr. Miguel Martinez (Pinkerton Consulting and Investigations) and Mr. Chris Solberg (California Highway Patrol), it appeared he would have physically assaulted Mrs. Walker. She fled the courtroom in tears sheltered by Mr. Martinez, while Officer Solberg confined the applicant to his chair."

In his opposing declaration, plaintiff described Walker’s purported discriminatory treatment of him. He also set forth an account of the years spent litigating his workers’ compensation claim. He contended that Miller had obstructed his discovery efforts, mishandled his medical records, and interfered with his Independent Medical Examination (IME). Plaintiff made numerous efforts to have Miller held in contempt and sanctioned. Plaintiff vehemently disputed Miller’s account of his purported assault on Walker. He denied he was restrained, confined, admonished or criticized for his behavior at the hearing. The recorded minutes for the hearing contain no mention of the attempted assault. Plaintiff asserted that Officer Solberg was prepared to testify in favor of plaintiff. Plaintiff also described his objections to Miller obtaining the records of his treating physician, Dr. Jeffrey Pearson, and disseminating them to non-medical personnel.

After a hearing, the trial court granted defendant’s anti-SLAPP motion based on a determination that Miller "had met her burden of showing that the activity alleged is protected under section 425.16" and that the litigation privilege (section 47) bars plaintiff’s claims. Kaabinejadian appealed the dismissal which was affirmed by the Court of Appeals in the unpublished case of Kaabinejadian v Miller.

"A SLAPP suit - a strategic lawsuit against public participation - seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Section 425.16, the anti-SLAPP statute, allows a party to bring a special motion to strike a meritless SLAPP suit at an early stage of the litigation. (Rusheen, at pp. 1055-1056; Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 708-709 (Dwight R.).) The protected activities described in subdivision (e)(2) of section 425.16 include statements or writings made "in connection with an issue under consideration or review by a . . . judicial body, or any other official proceeding authorized by law . . . ."

The activity underlying plaintiff’s complaint is Miller’s conduct as defense attorney in a workers’ compensation case. As such, plaintiff’s complaint is based on acts preparatory to or in anticipation of official proceedings. The Court concluded that "Miller’s actions were lawful and fully protected by the litigation privilege under section 47." ...

The Division of Workers’ Compensation (DWC) has posted an order adjusting the Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) section of the Official Medical Fee Schedule to conform to changes in the Medicare payment system as required by Labor Code section 5307.1. The update includes all changes identified in Center for Medicare and Medicaid Services Change Request (CR) number 8865.

The order is effective for services on or after October 1, 2014, and can be found on the DWC website. It is the third Medicare update for calendar year 2014 ...

Tampa attorney Brad Culpepper has made a name for himself on the football field, in the courtroom and on reality television. But now an insurance company filed a civil lawsuit against him accusing him of workers' compensation fraud.

For nine years, Culpepper went head to head against some of the biggest and strongest players in the National Football League. He parlayed fame on the field into success as a Florida personal injury attorney, living in a multi-million dollar bayfront mansion. Just last year, Culpepper was selected as a cast member for the CBS reality show "Survivor."

But now a story in Tampa Bay News reports that nearly four years ago, Culpepper filed for workers' compensation for injuries he suffered playing in the NFL. Doctors who examined him concluded that he was 89 percent disabled, and the insurance company, Fairmont Premier, gave him a $175,000 settlement. But what began as a claim similar to those made by other NFL players as well is now headed to court. In a lawsuit filed in Orange County, Calif., in July, attorneys for the insurance company say Culpepper lied to the doctors. He is "exquisitely fit and conditioned" and "is not disabled," the suit says. Moreover, the attorneys say, he is feigning injury while taking part in highly publicized athletic competitions. "Defendant Culpepper's conduct was fraudulent, deceptive and designed to inflate the value of his claim and to take advantage of and abuse the California workers' compensation system," the suit states.

Culpepper attorney Scott Schutzman called the insurance company attorneys' version of events an "exaggeration." No one disputes that Culpepper, 45, spent nearly a decade in professional football as a human battering ram. From 1992 to 2000, he was a defensive tackle for the Minnesota Vikings, the Bucs and the Chicago Bears. Before that he spent four years playing for the University of Florida, becoming an All­-American lineman and senior captain for the Gators.

After retiring from the NFL in 2001, he got a law degree, shed 75 pounds from his 280-pound frame and became a personal-injury lawyer in Tampa. In 2012, he became the lead plaintiff in a concussion lawsuit with 25 other players against the NFL. Culpepper also began practicing mixed martial arts, a sport that combines elements from a host of fighting styles. But attorneys for the insurance company say that when he was examined by several doctors in regard to his injury claim, he did not tell them about his new hobby. Had the insurer known, it would never have paid, the suit says.

Rather, the lawsuit alleges that Culpepper told physicians he had many injuries, from head and knee trauma to neurological and vision problems. He reported having "quite a bit of difficulty" with "usual work activities, usual hobbies and recreational activities, driving and sleeping" and could not sit for two hours at a time, according to the suit. "When asked if there are things he cannot do, defendant Culpepper testified that 'everything is difficult,' " the lawsuit says.

In 2013, after the claim was settled, Culpepper was a contestant with his wife, Monica, on the reality TV show Survivor: Blood vs. Water, where veterans of the show compete with loved ones. He was eliminated after 14 days. It was "clean, old-school caveman stuff," he told the Tampa Bay Times.

Schutzman, Culpepper's attorney, took issue with the narrative in the insurance company's lawsuit. "This man played in the NFL for 10 years. He has multiple doctors and medical records, including 14 or 15 MRIs, which show injuries to his knees, to his shoulders, to his head," he said. "He's had injury after injury after injury." The fact that his client exercises and has appeared on a reality TV show is not sufficient to prove that he was never injured or does not continue to suffer, Schutzman said. He also disputed the lawsuit's contention that Culpepper earned a black belt in mixed martial arts. "He doesn't have a black belt; he has an honorary black belt," he said.

However, the website for B.A. Warrior Training Center in Tampa lists Culpepper in its Black Belt Club, noting that "you all worked hard to attain your black belts in kickboxing." ...

Following a public hearing on July 1 and a review of comments, the Division of Workers’ Compensation (DWC) has made revisions to its Copy Service Fee Schedule regulations and is revising the proposed regulations for an additional public comment period of 15 days. Members of the public are invited to present written comments regarding the proposed modifications to dwcrules@dir.ca.gov until 5 p.m. on Wednesday, October 1.

The proposed revisions include:

1) Deleting provisions for fees incurred as a result of "authorizations" from the fee schedule as the fee schedule applies to records subpoenaed by copy services.
2) Adding a requirement for case information to be included in the bills for copy services and changing the use of billing codes to optional.
3) Clarifying that the claims administrator is responsible to pay the actual cost incurred for records obtained by Public Records Act requests from the Workers’ Compensation Insurance Rating Bureau and the Employment Development Department.
4) Clarifying that the claims administrator is not responsible to pay the flat rate when records that are subpoenaed can be obtained through the Public Records Act or were previously obtained by a subpoena by the same party and served from the same source unless there is good cause.
5) Increasing fees for X-rays as a survey showed that these costs often exceeded the Official Medical Fee Schedule.

The regulations can be found online on the DWC regulations page ...

Although the WCIRB has recommended an increase in California compensation premiums, an improving workers compensation market - including better policy underwriting, increasing comp premiums and a national decline in claim frequency - is driving the National Council on Compensation Insurance Inc. to recommend more decreases in other state workers comp rates for next year.

Boca Raton, Florida-based NCCI, a nationwide workers comp ratings and research organization, is the comp rating agency for 35 states and the District of Columbia. It also provides actuarial data for ratemaking agencies in Indiana and North Carolina. According to an article in Business Insurance, NCCI has submitted workers comp advisory rate filings in 20 states so far this year. Of those filings, 15 have been for rate decreases and four have been for increases.The agency requested rates remain the same in 2015 for Colorado.

Major states in which NCCI has requested decreases include Illinois, which recently approved a 5.5% decrease in workers comp rates for next year, and Oklahoma, which is considering a 7.8% decrease after the state began allowing employers to opt out of the workers comp system this year. Florida also is weighing a 2.5% decrease, the first potential workers comp rate cut for the state in four years. Mr. Burton said the trend is expected to continue as NCCI continues its rate filing season this fall, and said he's 'optimistic that the majority ... of our filings will be approved as proposed." "Underwriting results are good, premium is growing, and what has been one of the great stories over the years is (that) lost-time claims frequency has gone down," Mr. Burton said of trends driving NCCI's ratemaking this year. This is the first time in several years that NCCI advisory rates are expected to include more decreases than increases.

NCCI said at its annual conference in May that private workers comp insurers' combined ratio declined to 101% in 2013 compared with 108% in 2012 and 115% in 2011. Meanwhile, private insurers' workers comp premiums grew 5.4% year over year to $37 billion in 2013, driven largely by payroll growth and insurer pricing increases. Mr. Burton said those positive developments now are starting to make their way into workers comp rate filings.

Pam Ferrandino, executive vice president and casualty practice leader for Willis North America Inc. in New York, agreed that NCCI's rate filings indicate favorable trends in the national workers comp landscape. She said that improved insurer profitability is allowing some to propose smaller renewal rate increases this year after years of pushing for policy pricing increases of up to 5%. "We're beginning to see payroll growth, which also allows carriers to back off on some of the rate increases because it gives them a bigger base to spread some of the fundamental expenses across," Ms. Ferrandino said.

Decreasing rate trends haven't reached other major states that use proprietary rating agencies. In May, the New York Compensation Insurance Rating Board proposed a 6.8% increase in state workers comp advisory rates, effective Oct. 1. However, the New York Department of Financial Services rejected the proposal in July, keeping rates unchanged from last year. The San Francisco-based California Workers' Compensation Insurance Rating Bureau has asked the California Department of Insurance to raise the state's pure premium workers comp rate to $2.77 per $100 of payroll as of Jan. 1, 2015, compared with $2.68 at the start of this year. A WCIRB spokesman said increased workers comp claim frequency in Southern California played a role in its request for a rate hike, and the agency is researching the cause, he said.

Workers comp experts say they're not surprised that California is outside the trend of falling state workers comp rates. They say reforms passed by the state in 2012 have helped hold down some cost pressures but haven't completely alleviated them ...

The California Workers’ Compensation and Risk Conference in Dana Point opened with a session featuring employers and stakeholders in the industry weighing in on the current state of California Workers’ Compensation and future outlook for 2015. As summarized by Property Casualty 360, panelists began with a look at where California Workers’ Compensation is today: California holds a quarter of the nation’s workers’ compensation business. To date, 80 new carriers have entered the California market since 2004. California is among the top three states in terms of average medical costs per claim. California has experienced double-digit increases in premiums over the last two years.

Cost drivers to the California Workers’ Compensation system include a high frequency of claims handling in the state relative to payroll, with Los Angeles County having the most claims in the region. A multitude of expensive permanent disability claims that include attorney involvement. An increased frequency of opioid prescriptions, which has doubled.

SB 863 is California’s answer to addressing these costs, however, it is too early to provide tangible data that supports if the reform has been successful. Some early data shows that costs related to liens are down but costs related to independent medical reviews (IMR) are significantly higher than expected. Panelists were split as to whether the SB 863 reforms have been successful. Some say that, although too soon to judge, they are seeing the following positive indications that it is working: Generally, rate increases have been cut in half due to costs taking a downward trend. The highest costs are coming from old medical claims, rather than recent claims. Because this is the first time that California has experienced cost decline in quite some time, panelists thought that the cost cuts may make the state appear more employer friendly and it will encourage companies to return.

Panelists noted that there are still some kinks to work out in the reform. One stated that the Independent Medical Review (IMR) process, which has been designed to take non-medical professionals out of the medical decision-making process, is working well. On the other hand, the opioid decision-making process in place is currently not solving the costly opioid problem. Overall, people are still learning the new process, but they think that outcomes will be positive over time. They think that the measures are in place to help get the injured worker healthy and back to work. Most on the panel felt that that peer-to-peer review is the right approach and the system is better than it was.

The California Applicants Attorney Association (CAAA) strongly disagrees, however, and views the reform as a failure that is harming citizens. A representative said that they saw more employees returning to work prior to the reform and the system is averaging 4.3 medical denials per patient. They cite the cost of administering workers’ comp as one of the largest costs that a business can endure. In addition, they believe that peer-to-peer review is not working efficiently. CAAA thinks that legislative efforts to reform workers’ compensation is aiming at the worst-case scenarios, rather than the majority and, therefore, has not provided the best solutions for most companies.

Each panelist was asked what changes they would make to the California workers’ compensation system if he or she was Governor for the day. Suggestions included: Taking a fresh look at the current 101-year old system overloaded with rules, legislation, audits and controls. It is time to simplify a system that currently has layers of new rules on top of old rules and, as a result, enormous costs related to it all. Do away with cumulative trauma, which is a major cost driver that creates complexity. Some states have already done this. Make use of alternative dispute resolution. California has gone from incentives and positive reinforcement for providing prompt payments and benefits to a system focused on penalties. It needs a system that rewards promptness and minimizes disability. Address the opioid abuse and CURE system to make every effort to avoid addiction. California needs to look at the system from eye of the injured worker and simplify accordingly. Employees can’t understand the current complex system that is why they seek legal representation.

The session served as a great kickoff for the conference, providing both an overview of the current workers’ compensation cost drivers and offering suggestions for improving the system ...

The Division of Workers’ Compensation has posted draft Qualified Medical Evaluator (QME) regulations to the online forum where members of the public may review and comment on the proposals.

The draft regulations set forth how parties in a represented case will be able to submit initial QME panel requests online and immediately receive a QME panel. The requesting party will then serve the panel request form, any required documentation, and the QME panel on all parties with a proof of service. The draft regulations also simplify the QME form 105 for unrepresented injured workers.

According to the proposed regulations, "Requests may be made twenty-four hours a day, seven days a week. Requests made on Saturday, Sunday or a holiday will be deemed to have been made the next business day. Requests made Monday through Friday after 5:00 p.m. and before 12:00 a.m. will be deemed to have been made the next business day and requests made between 12:00 a.m. and 8:00 a.m. will be deemed to have been made 8:00 a.m. of the same business day.

There is also a major change to rule § 31.1 "QME Panel Selection Disputes in Represented Cases." Under the current rule, various disputes between the parties regarding the specialties of the physicians on the QME panel were to be resolved by the Medical Director, The several paragraphs pertaining to this administrative function are to be stricken from the new regulations. Instead, the proposed regulations simply provide that "Any disputes regarding the validity of the panel QME selection list or disputes regarding the appropriateness of the specialty designation may be resolved at the Workers’ Compensation Appeals Board."

"The division has spent the last year working hard to stay current with the increased volume of panel requests and has remained in compliance. We are excited to further improve upon the process by creating an online system for represented parties," said DWC Acting Administrative Director Destie Overpeck.

The forum can be found online on the DWC forums web page. Comments will be accepted on the forum until 5 p.m. on September 22 ...