Recent panel decisions have carved out exceptions to the UR and IMR process to resolve medical disputes. The most significant exception was pronounced in the second en banc case of Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298. In Dubon II the Appeals Board held that any "determination of medical necessity" is to be made by the WCAB following an untimely UR, and is to be "based on substantial medical evidence consistent with Labor Code section 4604.5."

However, the WCAB in Dubon confirmed the mechanics of what is required to show "substantial evidence" supporting a request for medical care. Quoting from Sandhagen: the WCAB in Dubon said "The Legislature amended section 3202.5 to underscore that all parties, including injured workers, must meet the evidentiary burden of proof on all issues by a preponderance of the evidence. (Stats. 2004, ch. 34, § 9.) Accordingly, notwithstanding whatever an employer does (or does not do), an injured employee must still prove that the sought treatment is medically reasonable and necessary. That means demonstrating that the treatment request is consistent with the uniform guidelines (§ 4600, subd. (b)) or, alternatively, rebutting the application of the guidelines with a preponderance of scientific medical evidence (§ 4604.5)." (Sandhagen, supra, 44 Cal.4th at p. 242 [bolding added].)

Unfortunately, the requirement for a showing that a request for treatment meets some type of a "uniform guideline" was ignored in the recent panel decision of Jared Carnes v Auto Zone.

In an Expedited Hearing, the parties stipulated that the UR was not timely. The WCJ therefore obtained jurisdiction over whether or not to award the treatment requested by Dr. Eichbaum. A Findings and Order, ruled that applicant had presented substantial evidence of need for medical treatment consisting of a sleep number bed that cost $5,325.86. The WCAB denied reconsideration in the split panel decision.

Dr. Eichbaum made a Request for Authorization setting forth that applicant was scheduled for a major lumbar surgical procedure. He has difficulty with sleeping and his bed is over fifteen years old. He has a very poor mattress. Dr. Eichbaum recommends a new mattress better suited for him and his condition to alleviate his pain and allow him to get rest. In his next letter Dr. Eichbaum said that applicant was scheduled for a lumbar decompression and fusion. In order to optimize his recovery, he'll need an appropriate bed to sleep on after the surgery. Dr. Eichbaum states that applicant has an inadequate bed and this would definitely be a problem following his surgery.Dr. Eichbaum specifically indicates that a "Sleep Number 18" mattress would be ideal after the surgery and would maximize his ability to recover.

What was missing from the record was any reference to any "uniform guideline" by the treating physician in his reporting, or any other medical professional that that supported an order for this bed. The decision is therefore a step back from the limits specified in Dubon and Sandhagen. The digression from exiting law that requires evidence from a "uniform guideline" did not go unnoticed by Commissioner Zalewski in the dissenting opinion.

The dissent goes on to note that an employer is obligated to provide medical treatment ''that is reasonably required to cure or relieve the injured worker from the effects of his or her injury ... " (Lab. Code, § 4600, emphasis added.) Through its enactment of recent statutes, the Legislature has shown that a dispute over whether a proposed medical treatment is reasonably required is to be determined by the use of evidence-based standards and medical opinion. (See Lab. Code, § 5307.27 [which provides for the development of a medical treatment utilization schedule (MTUS) that "shall incorporate the evidence-based, peer reviewed, nationally recognized standards of care"] and § 4610.5(c)(2) [defining "medically necessary" and "medical necessity" based upon a hierarchy of standards as follows: "A) The guidelines adopted by the administrative director pursuant to Section 5307.27. (B) Peer-reviewed scientific and medical evidence regarding the effectiveness of the disputed service. (C) Nationally recognized professional standards. (D) Expert opinion. (E) Generally accepted standards of medical practice. (F) Treatments that are likely to provide a benefit to a patient for conditions for which other treatments are not clinically efficacious."]; cf. Lab. Code, §§ 4604.5 [MTUS are presumed to be correct on the issue of extent and scope of medical treatment], 46 I 0 [UR], 4610.5 and 4610.6 [independent medical review].)"

Commissioner Zelewski points out that none the evidence in this case meets this standard, and thus the Finding is not supported by substantial evidence. The majority consisting of Commissioners Frank Brass and Marguerite Sweeny seemed to believe that this standard was met, without explanation except to say that "For the reasons stated by the WCJ in his Report, which is adopted and incorporated by this reference, the December 23, 2014 decision is affirmed and defendant's petition for reconsideration is denied."

The mandates of Sandhagen and Dubon have thus been eroded - without explanation by the majority,- and are in the process of death by a thousand small cuts ...

In 2014, the federal government recovered nearly $5.7 billion in fraud cases, up $1.9 billion from the prior fiscal year. Of that amount, $2.3 billion was tied to fraud against the federal government. Already, 2015 has seen a host of major fraud news involving dozens of individuals and amounting to millions in abuse, often related to Medicare fraud.

$100 Million: Thirty-seven people, including 24 doctors, pleaded guilty to a massive healthcare bribery scheme resulting in more than $100 million in payments from Medicare and various private insurance companies to Biodiagnostic Laboratory Services in New Jersey. On March 3, Michael J. Zarrelli, 48, of Berkeley Heights, New Jersey pleaded guilty to bribing a doctor in exchange for test referrals.

$75 Million: Community Health Systems and three of its hospitals in New Mexico in February agreed to pay a $75 million settlement to the federal government over a whistleblower suit that claimed it illegally donated money between 2000 and 2011 to New Mexico counties in return for higher Medicaid payments to cover the costs of indigent care. The activity was uncovered by whistleblower Robert Baker, a former revenue manager at Community Health Systems Professional Services Corp.

$30 Million: Operators of a Louisiana home care company, Priority Care at Home, as well as 20 other accomplices were indicted in March for their alleged role in a $30 million Medicare fraud scheme. The defendants allegedly hired "house doctors" to sign orders and plans of care for Medicare beneficiaries who had no legitimate medical necessity for home health services.

$14 Million: Jonathan Wade Dunning, a former CEO of two nonprofit health clinics in Alabama, was arrested in February on 112 counts related to alleged conspiracy, fraud and money-laundering of cash meant for the poor and homeless. The charges allege Dunning, as CEO and in other positions, participated in conspiracy and executed schemes to defraud Birmingham Health Care, Central Alabama Comprehensive Health and others of "substantial resources," according to the indictment.

$7.9 Million: Pharmaceutical giant AstraZeneca in February agreed to pay the government $7.9 million to settle allegations that it engaged in a kickback scheme regarding its drug Nexium. The complaint said AstraZeneca paid Medco Health Solutions, a pharmacy benefit manager, in exchange for Medco maintaining Nexium’s "sole and exclusive" status on certain Medco formularies and through other marketing activities.

$6.9 Million: Orelvis Olivera, a 45-year-old owner of Acclaim Home Health Care in Miami, in February admitted to running a $6.9 million Medicare fraud in which he and his conspirators billed the government for expensive therapies that patients did not need.

$3.5 Million:The New York-based Catholic Health Care System, an operator of skilled nursing facilities, agreed in March to pay $3.5 million to settle allegations that it inflated Medicare claims for rehabilitation therapy.

$1.6 Million: Vivian Yusuf, 44, the former owner of the Houston-area Ivy Health Care Supply company in February was sentenced to 7 years federal prison and ordered to pay $1.6 million in restitution on a conviction of conspiracy to commit healthcare fraud. From June 2007 to May 2009, Yusuf and co-conspirators improperly acquired Medicare patient information to submit false claims to Medicare totaling more than $3.4 million.

$1.1 Million: A Texas man impersonating an MRI salesman working with Cerner Corp. convinced employees of a Dallas hospital to wire him more than $1 million using an elaborate network of fake correspondence and several co-conspiratorsi. Albert Davis, 54, of Richardson, Texas, was charged with wire fraud after employees of Dallas Medical Center and Prime Health Care -- which acquired the hospital during the course of the scheme -- transmitted two wire payments totaling $1.1 million to the conspirators’ bank account to purchase the MRI ...

The California Little Hoover Commission, is an independent state agency charged with recommending ways to improve the efficiency and effectiveness of state programs. The Commission’s recommendations are submitted to the Governor and the Legislature for their consideration and action. By statute, the Commission is a bipartisan board composed of five public members appointed by the governor, four public members appointed by the Legislature, two senators and two assemblymembers.

The Commission said in the 140 page report, that California businesses are losing ground to unscrupulous competitors who break the rules to gain an unfair advantage,in a report calling on the Governor and Legislature to more effectively fight the state’s underground economy. The Commission found the underground economy is growing and thriving in part because of insufficient resources for enforcement. The Commission learned that many cheaters break the rules because getting caught is unlikely. If they are caught, few are charged in court. When found guilty, the profits from cheating often outweigh the fines and penalties. More, there is an abysmal record of collecting restitution. The state loses an estimated $8.5 billion or more annually in tax revenue, yet efforts to combat the underground economy are disjointed and under-resourced, the Commission found. It reported that the state’s bureaucratic disorganization and neglect provide significant incentives to cheat, making the rewards of participating in the underground economy outweigh the risks.

The Commission found that existing laws can be so confusing and inconsistent that even business owners who try to comply sometimes later learn they have broken rules. Recommended improvements include defining independent contractor in statute, bolstering asset seizure laws, and generally refining laws to improve clarity and to ensure rewards don’t outweigh risks.

The Commission also recommends replicating the current workers’ compensation fraud grant funding model to other high-fraud areas, enabling local district attorneys to increase their role in tackling the underground economy. Many stakeholders told the Commission that the workers’ compensation grant model, financed by premiums paid by California employers for fraud investigations and prosecutions, is an effective funding model. Nearly $59 million has been allocated for the FY 2015-16 grant cycle. A worker’s compensation manager of a Fortune 100 company and member of the Fraud Assessment Commission, which determines how much grant funding will be available for the program, told Commission staff that good oversight is what makes the grant process effective. "The Fraud Assessment Commission pushes and pushes and pushes for counties to do better. We constantly tell them that they have to do better to get the money. And it works," he said. "If similar programs are established, you should create a similar mechanism that requires proven performance for funding."

Counties funded by the grant dedicate prosecutors to investigating workers’ compensation fraud. "I have no problem finding prosecutors for workers’ compensation cases, because of the grant," the EDD Chief of Investigations told the Commission.Many district attorney offices have opened workers’ compensation fraud sections, in part because of the grant. Representatives from the Orange County District Attorney’s Office said the grant program allowed them to hire fraud specialists. "These cases can take years sometimes to get up to speed. The grant funding allows someone to build an expertise in fraud."

Prosecutors investigating workers’ compensation fraud cases frequently uncover additional unlawful activity. San Bernardino Deputy District Attorney David Simon told Commission staff: "Workers’ compensation fraud is just one spoke in a wheel of a wide variety of illegal conduct that we refer to as unfair business practices. This is what the Business and Professions Code defines as practices that unfairly advantage one business that disadvantage another business in the free market. We find that businesses without workers’ compensation are often unlicensed to do contracting, engaging in cash-pay transactions and income tax evasion, not paying overtime or engaging in theft of labor. They’re all related and a legitimate business person cannot possibly compete against the bid of these companies."

The Report concludes "Because of the effectiveness of the workers’ compensation grant program, stakeholders suggested that it could be expanded and replicated in other high-fraud areas, including dedicated funding for complex cases." ...

The U.S. Food and Drug Administration announced new actions to enhance the safety of reusable medical devices and address the possible spread of infectious agents between uses. A key change is that when manufacturers submit instructions for disinfecting the devices between uses, the Food and Drug Administration will not take the company's word that the instructions work, but will demand proof. In the past, the agency essentially took manufacturers at their word when they claimed a procedure worked; now they will have to submit data proving so "with a high degree of assurance," the agency said. The new recommendations are outlined in a final industry guidance aimed at helping device manufacturers develop safer reusable devices, especially those devices that pose a greater risk of infection.

The FDA issued a draft guidance discussing the reprocessing of reusable medical devices in 2011, and considered almost 500 comments before issuing the final guidance. The final guidance provides more clarity about testing protocols and what data should be submitted to the agency for a premarket submission, such as the data FDA needs to evaluate substantial equivalence for a 510(k) premarket submission. Manufacturers seeking to bring to market certain reusable devices, such as duodenoscopes, bronchoscopes and endoscopes, should submit to the FDA for review their data validating the effectiveness of their reprocessing methods and instructions.

FDA’s final guidance document, titled "Reprocessing Medical Devices in Health Care Settings: Validation Methods and Labeling" includes recommendations medical device manufacturers should follow pre-market and post-market for the safe and effective use of reprocessed devices. A device manufacturer’s reprocessing instructions are critical to protect patients against the spread of infections. As part of its regulatory review for reusable medical devices, the FDA reviews the manufacturer’s reprocessing instructions to determine whether they are appropriate and able to be understood and followed by end users. The guidance lists six criteria that should be addressed in the instructions for use with every reusable device to ensure users understand and correctly follow the reprocessing instructions.

Separately, the FDA also announced in the Federal Register that the agency’s Gastroenterology and Urology Devices Panel of the Medical Devices Advisory Committee will hold a public meeting on May 14 and 15, 2015 to discuss recent reports and epidemiologic investigations of transmission of infections associated with the use of duodenoscopes in endoscopic retrograde cholangiopancreatography (ERCP) procedures in hospitals in the United States.

The FDA action followed reports last month that hundreds of patients may have been exposed to pathogens, including antibiotic-resistant "superbugs," after flexible tubes called duodenoscopes were not properly disinfected between patients. Two patients at the University of California-Los Angeles died. The new recommendations apply, however, not only to duodenoscopes but to most medical devices intended for repeated use, including bronchoscopes and endoscopes.

To deal with the thousands of devices already in use, whose disinfection protocols were not subjected to rigorous validation, the U.S. Centers for Disease Control and Prevention released instructions for reducing the risk of transmitting infections. The protocol calls for swabbing the device after it has supposedly been disinfected and seeing if any microbes grow into detectable colonies, much as doctors take throat swabs to determine if a patient has a strep infection, before the device is used again. The duodenoscopes at the center of the recent superbug outbreaks are made by Olympus Corp, Fujifilm Holdings Corp, and Pentax.

As far back as 2009, the FDA believed that transmission of infection by duodenoscopes occurred when hospitals did not properly follow manufacturers' instructions for "reprocessing," or disinfecting, the devices between use. Only recently, the agency said, did it conclude that such transmission can occur even when the instructions are followed to the letter, an indication of how difficult it is to clean the complex equipment.

The FDA does not, however, "have the authority to require manufacturers to change their (device's) design" even if it prevents disinfection, Dr. William Maisel, FDA's deputy center director for science, told reporters ...

In recent years, the increasing cost of treatment at ambulatory surgery centers has been one factor in the escalation of California workers’ compensation medical costs. In 2012, state lawmakers sought to address these escalating costs by including provisions in SB 863 that, among other things, reduced the maximum facility fees for services performed in ASCs to 80 percent of the fee paid by Medicare for the use of hospital outpatient surgery departments. The WCIRB initially projected that this change in the fee schedule would reduce ASC payments by 25 percent. This new WCIRB CIRB joint study is a follow-up to the authors’ initial February 2014 study that measured the extent to which the change in ASC reimbursements achieved its intended goal of reducing these costs. It includes an entire year of additional data, encompassing episodes from January 2012 through June 2014.

Prior to 2004, California workers’ compensation outpatient surgery facility fees were not subject to a fee schedule, and payments varied widely as payers negotiated or paid usual and customary fees. In the absence of a fee schedule, California workers’ compensation paid significantly more than federal health care programs such as Medicare for comparable services, as was noted in a 2002 study by Kominsky and Gardner.

In 2003, California lawmakers amended Labor Code §5307.1(c)(1) in SB 228 to require the Division of Workers’ Compensation (DWC) to promulgate a fee schedule that utilizes the Medicare payment rules for the use of outpatient surgery rooms and emergency rooms. Under Medicare, each Current Procedural Terminology (CPT) code for a specific outpatient surgical procedure is classified into an Ambulatory Procedure Classification (APC). The final fee is calculated using a formula rather than a prescribed dollar amount. Under the fee schedule, which took effect for services on or after June 15, 2004, maximum facility fees could not exceed 120 percent of the Medicare fee. The adoption of the outpatient facility fee schedule had an immediate effect on costs. CWCI research from 2005 compared pre and post SB 228 payments for 239 distinct outpatient procedures performed in ASCs and found that after adjusting for medical inflation and changes in the mix of medical procedures, average outpatient surgery facility fee payments fell 38.9 percent following the adoption of the Outpatient Surgery Facility Fee Schedule in 2004.

By 2012, however, several years of escalating workers’ compensation medical costs and a growing desire to increase injured workers’ permanent disability benefits led state lawmakers to revisit the issue of ASC fees as one cost-saving component of a legislative reform deal (SB 863) hammered out by representatives of labor, employers and the Brown Administration.The final version of that bill called for the DWC to modify the Outpatient Facility Fee Schedule so that maximum facility fees for services performed in ASCs were reduced from 120 percent to 80 percent of the Medicare fee for those services, though hospital-based outpatient facility maximum fees were kept at 120 percent of the Medicare rate.

As found in the prior study, this update on the effects of SB 863 finds that the reduction in payments has been slightly better than the initial predictions, with a 27 percent decrease in payments per episode and a 29 percent decrease in the payments per procedure from the pre-reform to the post- reform period. There was no evidence of significant changes in service mix or intensity or shifts away from the ASC to the hospital setting. The study concludes by saying "These results are similar to the 2014 findings using the identical measures and show that thus far, the change in the ASC Fee Schedule has achieved its intended objective of reducing one aspect of workers’ compensation medical costs ...

A federal jury has convicted two Southern California residents in connection with a scheme to defraud union and private health insurance programs by submitting bills for more than $71 million and receiving over $50 million in payments for medically unnecessary procedures performed on insurance beneficiaries who received free or discounted cosmetic surgeries. A large number of the fraudulent claims were submitted to the International Longshore and Warehouse Union and Operating Engineers Union health insurance plans. Other victim insurers included Aetna and Anthem.

The two defendants found guilty are Theresa Fisher, 45, of Tustin, who was found guilty of five counts of mail fraud; and Lindsay Hardgraves, 30, of San Pedro, who was found guilty of two counts of mail fraud.

The evidence presented during a six-day trial showed that members of the scheme lured insured "patients" to a surgery center in Orange with promises that they could use their union or PPO health insurance plans to pay for cosmetic surgeries, which are generally not covered by insurance. The surgery center was known at various times as Princess Cosmetic Surgery, Vista Surgical Center, and Empire Surgical Center.

Marketers such as Hardgraves referred "patients" to the surgery center, where they were told they could receive free or discounted cosmetic surgeries if they underwent multiple, medically unnecessary procedures that would be billed to their union or PPO health care benefit program. Fisher was a consultant at the surgery center who scheduled procedures after telling the "patients" about the free cosmetic procedures they could receive and coaching them to fabricate or exaggerate symptoms so that their medical procedures would be covered by their insurance.

The unnecessary procedures typically performed on the "patients" were endoscopies (usually sophagogastroduodenoscopies, or EGDs), colonoscopies and cystoscopies. Once the health care benefit program paid the claims, the patients were given free or discounted cosmetic surgeries, including tummy tucks, breast augmentations and liposuction. In some cases, the surgery center simply billed cosmetic procedures (such as tummy tucks) as if they were medically necessary procedures (such as hernia surgeries).

Fisher and Hardgraves are scheduled to be sentenced on May 29. A third defendant in this case - Vi Nguyen, 31, of Placentia, another consultant at the surgery center - pleaded guilty in January to four counts of mail fraud and faces sentencing before Judge Staton on July 10. At sentencing, each defendant faces a statutory maximum sentence of 20 years in federal prison for each count of mail fraud ...

Jacob Richard Bonzer, 28, formerly of Lake Forest, Calif. was arrested last August in Chicago by a U.S. Marshals Task Force on 96 felony counts including grand theft, forgery and denial of benefits. He pleaded guilty and was sentenced to seven years in prison last Friday for selling fraudulent insurance polices in Orange County to fund a lavish lifestyle.

Between 2009 to 2013, Bonzer, collected more than $900,000 in commissions and premium payments for the fake polices, and created fake insurance companies to defraud customers, a statement from the Orange County District Attorney said.

Before being sentenced, Bonzer pleaded guilty to 49 counts of grand theft, one felony count of forging a California Department of Insurance Examination report, transacting insurance business without a certificate of authority, 45 felony counts of insurance fraud, with sentencing enhancements for aggravated white-collar crime totaling more than $500,000 and taking more than $200,000. He was ordered to pay $918,300 to his victims. Bonzer used the money to pay for fine dining, travel, wine club memberships and to rent luxury high-rise apartments.

Between 2009 to 2010, Bonzer worked at a Farmers Insurance Group office in Brea, before being fired after failing the company's career program. The Department of Insurance received a complaint alleging Bonzer submitted 128 fraudulent homeowners insurance applications containing bogus information using nonexistent policyholders for real properties, causing valid policies to be issued for phantom homeowners in escrow. Bonzer allegedly received $46,000 in advanced commissions from the insurance company that expected to collect premiums when the properties closed escrow. Since the applicants were bogus, the insurer never received premium payments and Bonzer was eventually fired.

In 2011, he continued his criminal activities and created a fake company and, with another insurance agent to whom he lied, created 800 more homeowner polices that listed fake names. The fake company was called GW Mutual Risk Retention Group, LLC, which was registered in Florida. GW Mutual is not licensed to write insurance in California though Bonzer sold workers’ comp and commercial insurance policies through his agency, Bonzer Insurance Brokerage, located in Orange County.

Bonzer collected roughly $280,000 in premium from 58 California businesses that believed they were purchasing valid coverage.The other agent paid back his half of the $573,242 in commissions. When questioned by a customer about his ability to sell insurance in California, Bonzer provided him with a fake document from the state department of insurance.

Bonzer orchestrated these elaborate scams by using multiple post office boxes, virtual assistants, business entities, office spaces, email accounts, website domains and bank accounts ...

The nation's largest pharmacy benefits manager says prescription drugs spending rose 13 percent last year, the largest annual increase since 2003. Express Scripts says the gains were fueled by pricey specialty drugs that accounted for about 31 cents of every dollar spent on prescriptions even though they represented only 1 percent of all U.S. prescriptions filled.

New hepatitis C therapies with high price tags and the exploitation of loopholes for compounded medications drove a 13.1% increase in U.S. drug spending in 2014 - a rate not seen in more than a decade. The report says that these findings "demonstrate the need for plans to take decisive action and more closely manage the pharmacy benefit to ensure all patients are able to achieve the best possible health outcomes at a price our country can afford."

Inflammatory conditions, multiple sclerosis and cancer remained the top three specialty therapy classes for the fifth consecutive year, collectively contributing to 55.9% of the spend for all specialty medications billed through the pharmacy benefit in 2014.

Spending on traditional medications continues to rise as a result of compounded drugs, which emerged in the top 10 traditional therapy classes for the first time and accounted for 35% of the increase in spending. However, Express Scripts expects spend on compounded medications to decline sharply in 2015 due to widespread adoption of our compound utilization management solution. Express Scripts’ compound management solution, implemented in mid-2014, will save its clients more than $1.9 billion in 2015 that would have otherwise been wasted on compounded medications that do not provide a proven clinical benefit.

Drugmaker consolidation and drug shortages also led to increases in traditional drug trend, which rose to 6.4% in 2014. Half of the top 10 therapy classes experienced negative trend in 2014 due to generics. While it expects that trend to persist for the next two years, some categories will face challenges from continued drugmaker consolidation, which can lead to price increases from drug shortages and decreased competition ...

Antonia Torres Cerda, 48, died at UCLA Ronald Reagan Medical Center after she allegedly was infected with a "superbug" bacteria transmitted into her body by medical equipment. The Fresno Bee reports that the family is now suing the equipment maker for wrongful death, negligence and fraud. Cerda’s family is asking for punitive and exemplary damages of an unspecified amount. The University of California at Los Angeles is not named in the lawsuit.

Cerda had been given a procedure for ERCP, or endoscopic retrograde cholangiopancreatography, before the transplant and a second procedure afterward, said Peter L. Kaufman, a Los Angeles lawyer who is representing Cerda’s husband, Armando Cerda, her four children and her mother. The procedures were done using a duodenoscope manufactured by Olympus Medical System Corp. of Japan and marketed and sold by Olympus Corp. of the Americas and Olympus Medical System Corp. The scopes are flexible tubes inserted down the throat into the small intestines. About 500,000 people in the U.S. undergo procedures with the scopes every year, according to the federal Food and Drug Administration.

Antonia Cerda needed the transplant because she had nonalcoholic liver cirrhosis, said her oldest daughter Cynthia, 18, a freshman at the University of California at Santa Cruz. She said her mother, who was a field worker, became ill seven or eight years ago and was on the transplant list for about five or six years. Following the transplant, her mother had started to recover but then grew ill from the infection and died. The doctors said there were no antibiotic medications that would have killed the bacteria and saved her mother.

Cerda’s is one of two patient deaths that have been connected to an antibiotic-resistant bacterial outbreak at UCLA. The outbreak is believed to have spread through the use of endoscopes. Five others were infected with the bacteria after having procedures to diagnose and treat pancreatic and bile duct problems between October and January, and UCLA notified 179 people that they may have been exposed. UCLA spokeswoman Dale Tate said seven different scopes were used at the hospital during that time but five had no sign of bacteria. "There were only two that were impacted," she said. Both were made by Olympus.

The lawsuit alleges that Olympus failed to develop and validate an effective way to clean a redesigned Q180V Scope. Kaufman said a device manufacturer that makes and markets a reusable medical instrument has "an obligation to figure out how to clean it, and they have to prove that their cleaning method works." Otherwise, he said, they would have to sell it as a "single-use device." According to the lawsuit, Olympus knew the complex design of its duodenoscope "renders some part of the device extremely difficult to access" and as a result, difficult to clean. An elevator mechanism within the scope contains microscopic crevices that can’t be reached with a brush, and material can remain inside, the suit said. Olympus should have known that these "residual fluids contain microbial contamination, multiple patients would be exposed to serious risk of harm, including lethal infection," the suit alleges.

Olympus redesigned the TJF-Q180V duodenoscope in 2014, the suit alleges, but failed to update cleaning protocols. But before the redesign, the company allegedly knew the devices were difficult to clean. In 2013, Olympus was allegedly informed of infections to patients in the state of Washington, and "at least four patients who were infected as a result of exposure to contaminated duodenoscopes died." The suit said Olympus continued to aggressively market the devices "with conscious disregard of the extreme risks to the public of serious infection, pain, suffering and death."

The lawsuit also includes an allegation of fraud and names three Olympus sales and marketing representatives from Southern California. The lawsuit said the three made false representations to UCLA doctors and staff between July 2014 and January 2015 about the device’s safety and risks associated with its reuse. In seeking punitive damages, the lawsuit said the family believes that Olympus "acted with ‘malice’ ".

Olympus officials did not return telephone calls or email requests from the Fresno Bee for comment ...

Federal law enforcement agents in Medford Oregon arrested a California couple charged with marketing unapproved medical devices that were claimed to treat ailments ranging from ulcers to AIDS.

Special agents from the Medford office of Immigration and Customs Enforcement arrested David Perez and Sandra Perez at an apartment in the 2300 block of Bromley Street in Medford on warrants issued by the U.S. District Court for the Southern District of California. An indictment claims the couple and co-defendant Beth Campbell have sold almost $700,000 worth of "biofrequency" devices under the brand name Energy Wave. Both husband and wife are charged with conspiracy, sale of adulterated devices, the sale of misbranded devices, acting to cause the shipment of adulterated or misbranded devices and making false statements.

The devices, which prosecutors say were manufactured by an un-indicted co-conspirator in his Southern California home, consist of a small computer-controlled generator connected to metal cylinders intended to be held by the user. "Users were provided with an operating manual and a listing of 'Auto Codes' that set forth hundreds of digital settings for the device directed to specific conditions such as abdominal pain, AIDS, diabetes, stroke, ulcer and worms," the indictment says.

The devices apparently were not approved by the Food and Drug Administration, and prosecutors say the Perezes took extra care to hide their activities from the agency, registering their website in the Philippines and uploading the devices' instructions to the Internet instead of including them in the box. According to the indictment, David Perez had previously been a partner in California-based CGNI Inc., the owners of which were convicted in 2011 of selling a product called the "Detox Box," which prosecutors say was almost identical to the Energy Wave.

The Perezes were released from custody in Medford after posting $25,000 bonds, court records show ...

A new ProPublica/NPR report summarized in an article in the Los Angeles Times, claims that , "over the past decade ... state after state has slashed workers’ comp benefits, driven by calls from employers and insurers to lower costs. In fact, employers are now paying the lowest rates for workers’ comp than at any time since the 1970s. Nonetheless, dozens of legislatures have changed their workers’ comp laws, often citing the need to compete with neighboring states and be more attractive to business."

The result, according to the report, is a grim "geographic lottery" in which compensation, including for lost limbs, varies depending on the state in which you were hurt. There are no federal benchmarks, and plenty of state-level political resistance to fix the problems. More broadly, erosion of protections across the states has had a devastating effect on families in which one of the wage-earners can no longer work, or work at full capacity, because of a serious injury on the job. The report claims "The loss of an arm, for example, is worth up to $48,840 in Alabama, $193,950 in Ohio and $439,858 in Illinois. The big toe ranges from $6,090 in California to $90,401.88 in Oregon." .... "Given their profound impact on people’s lives, how much compensation workers get for traumatic injuries seems like it would be the product of years of study, combining medical wisdom and economic analysis. But in reality, the amounts are often the result of political expediency, sometimes based on bargains struck decades ago."

A new report by the federal Department of Labor's Occupational Safety and Health Administration argues that "changes in state based workers’ compensation insurance programs have made it increasingly difficult for injured workers to receive the full benefits (including adequate wage replacement payments and coverage for medical expenses) to which they are entitled. Employers now provide only a small percentage (about 20%) of the overall financial cost of workplace injuries and illnesses through workers’ compensation. This cost-shift has forced injured workers, their families and taxpayers to subsidize the vast majority of the lost income and medical care costs generated by these conditions."

These criticisms have dated back for decades. The federal Occupational Safety and Health Act was enacted by Congress in 1970 and was signed by President Richard Nixon on December 29, 1970. The new law authorized the National Commission on State Workers Compensation Laws, a group appointed by President Nixon in 1971 to study workers compensation laws. It issued sweeping recommendations to upgrade state workers compensation laws, including higher disability benefits, compulsory coverage, and unlimited medical care and rehabilitation benefits. It recommended that all states pay totally disabled workers at least two-thirds of their salary up to a maximum of the state's average weekly wage. Still, many states have not complied with the Commission's recommended standard wage.

California responded to the Commission Report by adopting mandatory vocational rehabilitation. It was argued at the time that by embellishing the California system with this new benefit, the State would head off a threatened federal takeover of workers' compensation systems adopted in the various states. Mandatory vocational rehabilitation was later proven to be a costly mistake, was modified and ultimately revoked by the California Legislature with little regret.

For some, the response to these studies would be based upon a famous quote from Ronald Regan. "There you go again" was a phrase spoken during the 1980 United States presidential election debate by presidential candidate Governor Ronald Reagan to his Democratic opponent, incumbent President Jimmy Carter. "There you go again" emerged as a single defining phrase of the 1980 presidential election.The phrase has endured in the political lexicon in news headlines, as a way to quickly refer to bringing certain issues up repeatedly ...

California’s Labor Enforcement Task Force (LETF) is cracking down on businesses violating laws designed to protect workers and California’s economy. In the report submitted to the Legislature this month, the task force since its inception in 2012 has inspected nearly 4,300 businesses suspected of operating in the underground economy. During its first three years, LETF joint inspections have found consistently high rates of non-compliance. On average, across all industries, more than 80 percent of LETF inspections have resulted in penalties for non-compliance. In addition, 40 percent of businesses were out of compliance with every agency participating in the inspection. LETF has assessed $4.2 million in wages due to workers.

LETF works in partnership with other agency enforcement programs to share information and draw upon each program's respective strengths. At the direction of the Governor in 2012, DIR initiated a collaborative relationship with the Employment Development Department's Joint Enforcement Strike Force (JESF). Similarly, in 2013, Assembly Bill 576 established the Revenue Recovery and Collaborative Enforcement (RCCE) Team to fight criminal tax evasion. In his signing message, Governor Brown directed DIR to lead the RRCE to ensure that the three teams (LETF, JESF, and RRCE) work together and avoid overlapping efforts.

To this end, DIR has worked to facilitate a governance framework among participating agencies to clarify roles and responsibilities. Ongoing implementation activities include establishing a cross-referral protocol and appropriate data-sharing solutions to improve enforcement efficacy. While each remains under the guidance of their respective agencies, coordination of enforcement efforts supports enhanced communication, while leveraging administrative costs, areas of authority, and staff resources across participating agencies. More recently, DIR has facilitated collaboration among local district attorneys' offices, roofing contractors, and labor groups to form the Roofing Compliance Working Group. This multi-agency coalition combats unsafe and unfair practices in the roofing industry, where the incidence of serious workplace injuries and fatalities is higher compared to other industries.

"Employers in the underground economy are a threat to the financial security of millions of workers in our state who aren’t paid properly and are exposed to dangerous working conditions. These underground operations also have an unfair advantage over legitimate, law-abiding employers," said Department of Industrial Relations (DIR) Director Christine Baker. DIR administers the multi-agency task force.

"As a result of violations found by our task force, many businesses operating in the underground economy face thousands of dollars in fines and are ordered to stop work due to hazardous working conditions," said Dominic Forrest, LETF Acting Chief. "We are cracking down on these egregious violators in California."

LETF focuses on underground employers in high-risk industries known to frequently abuse the rights of low wage workers, rather than geographic sweeps that prove ineffective by burdening compliant businesses in the area. The targeted industries include car wash, restaurant, garment manufacturing, roofing, construction, agricultural and auto repair businesses. Frequent violations among underground employers include the failure to protect workers as required by workplace health and safety regulations, inadequate workers’ compensation insurance coverage, not paying state payroll taxes, and cheating workers on their earnings ...

The California Labor Commissioner’s Office last week cited car wash businesses in the Los Angeles area more than $1.3 million for wage theft following a two-day enforcement activity. The majority of the violations were found at 35 car wash businesses that failed to register with the Labor Commissioner’s Office, as required by law. The inspections uncovered numerous violations of state wage and hour laws affecting nearly 400 workers.

"These citations serve as a reminder that wage theft will not be tolerated. The Labor Commissioner’s office targets its enforcement efforts on employers who intentionally skirt the law," said Christine Baker, Director of the Department of Industrial Relations (DIR), which oversees the Labor Commissioner’s Office.

The 35 unregistered car wash businesses reflect a significant drop in registration from 2013 to 2014.

"When car wash businesses fail to register, it is often an indicator of wage theft. We are also following up with some of the inspected car washes to conduct full wage audits," said Labor Commissioner Julie A. Su. "We want to make sure car wash workers are paid what they are owed and that employers who follow the law know we are on their side."

Violations cited included the failure to pay workers minimum wage and overtime, which resulted in $412,200 in penalties and $308,584 in liquidated damages. An additional 17 violations with citations totaling $218,000 were issued to employers who did not carry workers’ compensation insurance coverage.

The Labor Commissioner’s Office, formally known as the Division of Labor Standards Enforcement, inspects workplaces for wage and hour violations, adjudicates wage claims, enforces prevailing wage rates and apprenticeship standards in public works projects, investigates retaliation and whistleblower complaints, issues licenses and registrations for businesses, and educates the public on labor laws. Updated information on California labor laws is available online.

The Wage Theft is a Crime public awareness campaign, launched last year by DIR and its Labor Commissioner’s Office, has helped inform workers of their rights. The campaign includes multilingual print and outdoor advertising as well as radio commercials on ethnic stations in English, Spanish, Chinese, Vietnamese, Hmong and Tagalog.

Employees with work-related questions or complaints may call the toll-free California Workers’ Information Line at (866) 924-9757 for recorded information in Spanish and English on a variety of work-related topics ...

The day that patients with osteoarthritis can ease their painful joints by using stem cell therapy to regenerate damaged cartilage took a step closer recently when researchers reported successfully producing cartilage in rats using embryonic stem cells. The success is attributed to a new procedure or protocol for using human embryonic stem cells, developed under strict laboratory conditions, by the researchers at the University of Manchester in the UK.

Osteoarthritis mainly affects people over the age of 60, and is a major cause of disability. It is a degenerative disease caused by wearing away of cartilage in joints that have been continually stressed during a person's lifetime, including the knees, hips, fingers and lower spine region. The World Health Organization estimates that around 9.6% of men and 18.0% of women aged over 60 years have symptomatic osteoarthritis.

Cartilage cells - also known as chondrocytes - are formed from precursor cells called chondroprogenitors. In their study, the team describes how they used the new protocol to generate chondroprogenitors from human embryonic stem cells. They implanted the precursor cartilage cells into damaged cartilage in the knee joints of rats. After 4 weeks the cartilage was partially repaired. After 12 weeks, the cartilage surface was smooth and similar in appearance to normal cartilage. Later examination of the regenerated cartilage showed that cartilage cells from the embryonic stem cells were still present and active in the tissue.

According to the article in Medical News Today, the study is promising because not only did the new protocol lead to regenerated, healthy-looking cartilage, but there were none of the adverse side-effects that have since dashed the high hopes raised in the early days of stem cell research - the growth of abnormal or disorganized tissue or tumors.

Testing the new protocol in rats is the first step toward running trials in people with arthritis. But before this can happen a lot more needs to be done to show the protocol works and is safe. The team is already planning their next step to build on their findings.

Another approach to using human embryonic stem cells to generate new cartilage cells is using adult stem cells. Adult stem cells are found in certain "niches" in the body and are not as controversial as embryonic stem cells but their potential is not so great. Also, note the authors, they cannot currently be produced in large amounts and the procedure is expensive.

Dr. Stephen Simpson, director of research at Arthritis Research UK, says he is encouraged by the new study because: "Embryonic stem cells offer an alternative source of cartilage cells to adult stem cells, and we're excited about the immense potential of Professor Kimber's work and the impact it could have for people with osteoarthritis." He explains that current treatments for osteoarthritis can only relieve painful symptoms, and there are no effective therapies that delay or reverse cartilage degeneration. Joint replacements are successful in older people, but these options are not effective in younger people or athletes with sports injuries ...

A Bay Area mechanical designer suffering from carpal tunnel syndrome said she had her workers’ compensation reduced for a reason that has caught the attention of women’s groups and lawmakers: She was postmenopausal. And she says she is not alone in having her permanent disability claim reduced for factors that Sue Borg, her San Mateo attorney, said are clear examples of gender bias in the handling of workers’ compensation claims. Borg said she frequently sees cases where women injured in the workplace are "penalized" for gender-related factors like pregnancies and menopause.

According to the story published in SF Gate, Assemblywoman Lorena Gonzalez, D-San Diego, will introduce a bill she said would ensure that being female is not treated as a pre-existing condition by prohibiting a woman’s workers’ compensation from being reduced based on pregnancies, breast cancer, menopause, osteoporosis or sexual harassment. "It seems like it should be obvious that we shouldn't see this, but it happens in insidious ways all the time," Borg said.

The state workers’ compensation system of apportioning responsibility for an injury underwent major reforms under Gov. Arnold Schwarzenegger in 2004 in order to reduce the soaring costs of insurance premiums paid by employers across the state. "Before that, an employer was on the hook for the entire disability no matter the cause or whether it was successive injuries at different employers," says Jerry Azevedo, spokesman for the California-based Workers Compensation Action Network, which works to reduce job-related injury costs to employers. "The concept of apportionment is the employer pays their fair share for the injury."

Azevedo said that despite those reforms, a study last year found that California employers pay the highest workers’ compensation costs in the nation. "Most states have seen their workers’ compensation claims go down," Azevedo said. "California has been going up. We get more claims, more complicated claims and more permanent disability claims. This bill is a decade-old attack on apportionment."

The bill's supporters say the issue of gender bias in workers’ compensation is real, despite laws prohibiting gender discrimination. The issue is especially evident in the way breast cancer is treated among firefighters and police officers, supporters say.

The California Applicants’ Attorneys Association, a lawyers’ group that is sponsoring the legislation, said a police officer who undergoes a double mastectomy for breast cancer linked to hazardous materials she encounters on the job would be considered zero to 5 percent disabled depending on her age, while a male officer with prostate cancer linked to hazardous materials exposure would be considered 16 percent disabled and would be paid for the injury. That was the case for one San Francisco firefighter, who was denied any permanent disability compensation after undergoing a double mastectomy, according to a list of several examples provided by the attorneys association.

In another case outlined by the attorneys association, an Orange County hotel housekeeper who was injured moving a bed was told that although she was 100 percent disabled, her employer was liable for 2 percent of the injury based on health conditions "related to childbirth, obesity, age and naturally occurring events."

"I’ve had a child, and if now being a mother is a pre-existing condition in California, I find that unacceptable," said Christine Pelosi, chair of the California Democratic Party’s women’s caucus and daughter of House Minority Leader Nancy Pelosi.

Deborah Berger, co-president of the California Nurses Association, said she regularly hears of nurses injured - including while lifting patients - having their workers’ compensation reduced due to osteopenia or osteoporosis, diseases found mostly in women that weaken the bones. "That’s extremely troubling to us," Berger said ...

The leading national evangelist for a cause and effect relationship between professional football and dementia is Anne McKee M.D. a neuropathologist and expert in neurodegenerative disease at Boston University School of Medicine. McKee is a leading authority on chronic traumatic encephalopathy, (CTE), a degenerative brain disease that has been found in some athletes participating in boxing, American football, ice hockey, other contact sports, and military service. McKee has presented her findings to National Football League officials and testified before the United States House Judiciary Committee, claiming that there is a cause and effect relationship. Her post mortem findings form the basis for the thousands of civil and workers' compensation cases that have been filed by former professional athletes for CTE.

Yet, despite the public and media perception to the contrary. her findings have not passed the scrutiny and received the support of her peers. The British Journal of Sports Medicine published the Consensus Statement on concussion in sport following the 4th International Conference on Concussion in Sport held in Zurich back in November 2012. The leading medical experts in the world concluded in the Consensus Statement that "It was agreed that CTE represents a distinct tauopathy with an unknown incidence in athletic populations. It was further agreed that CTE was not related to concussions alone or simply exposure to contact sports. At present, there are no published epidemiological, cohort or prospective studies relating to modern CTE. Owing to the nature of the case reports and pathological case series that have been published, it is not possible to determine the causality or risk factors with any certainty. As such, the speculation that repeated concussion or subconcussive impacts cause CTE remains unproven."

One of the named co-authors of this Consensus Statement was Robert Cantu, M.D. Currently Dr. Cantu’s professional responsibilities place him side by side with Anne McKee. These include Clinical Professor Department of Neurosurgery and Co-Director Center for the Study of Traumatic Encephalopathy, Boston University School of Medicine, Boston, MA. He is also Senior Advisor to the NFL Head, Neck and Spine Committee; Section Co-Chair Mackey-White National Football League Players Association Traumatic Brain Injury Committee; Co-Founder and Chairman Medical Advisory Board Sports Legacy Institute, Waltham, MA; Adjunct Professor Exercise and Sport Science and Medical Director National Center for Catastrophic Sports Injury Research, University of North Carolina, Chapel Hill, NC; Co-Director, Neurologic Sports Injury Center, Brigham and Women’s Hospital, Boston, Chief of Neurosurgery Service, Chairman Department of Surgery, and Director of Sports Medicine at Emerson Hospital in Concord, Massachusetts,

Thus, despite the pubic and media assumption of cause and effect, the science does not quite support the assumption. The International Conference will again convene next year for the 5th time to study the issue.

And now more notable professional athletes are supporting the cause. New York Giants punter Steve Weatherford and former National Football League receiver Sidney Rice have announced they will donate their brains to medical research after their deaths.The two NFL champions want to help brain disease research, especially on the debilitating effects of concussion.

Rice estimated he had incurred between 15 and 20 concussions since starting to play football at the age of eight. "I had my fair share of fun in the NFL," said Rice, a Super Bowl-winning receiver with the Seattle Seahawks last year. "Unfortunately, I wasn't educated enough on (what) concussions can lead to. The brain studies by the doctors will be huge to help, maybe prevent."

The two stars hope their commitment might mobilize others to do the same. "It's helpful to get a professional athlete behind something," said Weatherford. "This is something that has affected Sidney and affected me in the form of one of my dear friends, Junior Seau, committing suicide." Seau, a 12-time Pro Bowl linebacker, died after shooting himself in the chest in 2012 at the age of 43. A study of Seau's brain revealed that he suffered from chronic traumatic encephalopathy, or CTE, a debilitating brain condition caused by repeated jolts to the head that can lead to aggression and dementia.

Both Rice and Weatherford said they thought the NFL had taken positive steps to address the dangers of repetitive blows to the head but that more needed to be done ...

While workers’ compensation pharmacy benefit managers have been utilizing drug formularies for a long time, only Washington, Texas, Ohio and Oklahoma have state-regulated drug formularies in place. Several more states are considering their use as a way to reduce drug costs and curtail inappropriate treatment that may hinder an injured worker’s ability to return to work

According to the report in the Claims Journal, the way drug formularies work varies by state. Mark Pew, senior vice president of Prium, a workers’ compensation medical intervention company, says that 'we’ve got 50 different systems. Every state has different political realities, has different ways of addressing treatment guidelines, ways of addressing dispute resolution processes. All of that contributes to what kind of formulary is implemented,' said Pew. According to Jennifer Kaburick, senior vice president of Workers’ Compensation Product Management and Strategic Initiatives for Express Scripts, state formularies are intended to be a guide and have different objectives than a standard health plan formulary. The primary goal in workers’ compensation, she said, is to make sure that a person’s treatment is related to their work-related injury.

California, Montana, Tennessee and Maine, are currently considering drug formularies, said Kaburick. Louisiana is researching the idea and Arkansas’ drug formulary is set to launch in July 2015, Pew said.

Besides being more cost effective, state-regulated drug formularies have other benefits, experts said. "I think the biggest benefit is really enforcing or forcing, if you will, prescribing behavior changes. If you think about it in terms of what’s best for the injured worker in returning to function and returning to work as quickly, and efficaciously as possible," said Pew. Kaburick said in addition to cost savings, there is the likelihood of better utilization. "It does appear that they’re saving money for payors....controlling prescription costs in the system for that particular state, but also while ensuring injured workers maintain access to the medications that they need for their effective recovery," said Kaburick.

Pew also noted better utilization as a benefit too. "By changing prescribing behavior, and what I call the hassle factor they make it more difficult for doctors to automatically write a script for a drug," Pew said. He cited Texas as an example, where for all new claims on or after September 1st, 2011, the state requires compliance with the formulary. "The use of Soma (a muscle relaxant) dropped by 90 percent on day one, because there are other muscle relaxants," Pew said. "There were other options besides Soma, but doctors had gotten used to writing a script for Soma along with a cocktail of the other drugs. By incorporating a hassle factor and forcing them to go through a preauthorization process before they can write and dispense the Soma, doctors figured out another way to handle it."

A potential indirect effect is less addiction to prescription drugs. "Certainly, what we’ve seen, with the advent of all the opioids, the benzodiazepines, like Xanax and Valium, people can get highly dependent. We use the term ‘addiction’ a lot, and sometimes it’s not appropriate," Pew said. "The vast majority of people that are on these drugs are dependent, which means they don’t necessarily move heaven and earth to get their drugs, but if you withhold the drugs from them, they’re going to go through some significant withdrawal symptoms. Chances are, they’re going to continue the drugs because they don’t want to go through the withdrawal. What we have done by creating this is we’ve created a lot of people that are highly dependent, and/or addicted on these drugs." Ohio reported a 27 percent reduction in the use of opioids, and a 73 percent reduction in the use of skeletal muscle relaxants, he said.

A study released last year by the Workers Compensation Research Institute (WCRI) examined how a Texas-like drug formulary might affect the use and costs of drugs in 23 other state workers’ compensation systems that don’t currently have a drug formulary in place. According to the study, Impact of a Texas-Like Formulary in Other States, if physicians in the 23 other study states were to change their prescribing patterns like physicians in Texas, they could reduce total prescription costs by to 29 percent.

The California Workers’ Compensation Institute issued a report in October 2014 discussing whether formularies could sufficiently control inappropriate utilization and costs.The research looked at formularies used in both Texas and Washington and found that drug costs could be reduced between 12 and 42 percent - that’s $124 to $420 million in savings annually, the report’s authors concluded. The report also found that a formulary could reduce administrative costs related to medical dispute resolution ...

Cal/OSHA today launched a safety awareness campaign for roofers, where the workplace incidence of serious injuries and fatalities is higher compared to other industries. "Roofing operations are inherently risky and worker safety is paramount. Employers must have strong safety programs in place that include appropriate equipment and training to prevent injuries on the job," said Christine Baker, Director of the Department of Industrial Relations, which oversees Cal/OSHA.

Between 2012 and 2014, Cal/OSHA conducted 126 investigations of roofing operations where an accident occurred. A full three out of four of those accidents occurred at roofing operations that were found to be in violation of state safety regulations.

Falls are the leading cause of death and serious injury for roofing workers. Most falls can be avoided by following safety regulations. For example, on December 27, 2013, West Coast Roofing employee Leopoldo Retana fell 36 feet to his death at a job site in Ventura. Investigators found Mr. Retana had not been wearing fall protection equipment or a positioning system. West Coast Roofing was cited $22,360 for 10 violations, including two serious in nature. Serious violations are those where death or serious physical harm could result from a hazard created by the violation.

Another tragic and preventable case occurred earlier that year on June 13, 2013, when Midwest Roofing and Solar employee Ernesto Rosales fell approximately 17 feet from the unprotected edge of an apartment building roof in Pico Rivera. Mr. Rosales died five days after the accident. Cal/OSHA cited Midwest Roofing and Solar $39,600 for five serious violations. Cal/OSHA’s "Roofing Maximum Enforcement Program," taking place from March 1 through November 1, calls for targeted inspections of roofing operations across the state. This program will help ensure employers provide the necessary training and safety equipment to protect their workers on the job.

"Cal/OSHA inspectors will carefully review safety measures at roofing operations and address safety issues they encounter," said Cal/OSHA Chief Juliann Sum. "Our goal is to raise awareness for on-the-job safety in the roofing industry so that hazards are identified and corrected." Fall protection is among the items Cal/OSHA inspectors will be reviewing at the site visits, from railings on buildings to personal devices such as hooks that attach to vests. Inspectors will verify that workers have safe access to rooftops and are protected from electrocution hazards posed by overhead power lines. Also, inspectors will review employers’ heat illness prevention program at roofing operations where reflected surfaces can increase the heat factor of the climate.

If inspectors find a lack of protection or a serious hazard, they can issue a stop order at the site until the hazards are corrected. Employers who fail to comply with Cal/OSHA safety regulations will be cited and ordered to correct the violations.

Cal/OSHA offers online resources for workers and employers, with a fact sheet on preventing slips and falls for roofers and other safety publications. Hazardous conditions at roofing operations and other worksites can be reported to Cal/OSHA’s enforcement offices. Enforcement officers respond immediately to such reports.

Cal/OSHA, an active partner in the Labor Enforcement Task Force (LETF), also works collaboratively on the Roofing Compliance Working Group. The multi-agency coalition includes LETF enforcement agencies, local district attorneys’ offices, roofing contractors and labor groups. It helps to hold accountable those employers who fail to comply with safety regulations, cheat workers on earnings, fail to carry workers’ compensation insurance, or fail to pay state payroll taxes.

Employers can receive free and voluntary assistance to help them improve their health and safety compliance with Cal/OSHA’s Consultation Program. Employers can learn more about this program by calling (800) 963-9424.

Cal/OSHA helps protect workers from health and safety hazards on the job in almost every workplace in California. Employees with work-related questions or complaints may call the California Workers’ Information Hotline at (866) 924-9757 for recorded information in English and Spanish on a variety of work-related topics ...

In 1996 Kathleen Murphy, while employed as a cashier for Petsmart in 1992, sustained industrial injury to her right fool and psyche causing the need for further medical treatment. The case was resolved in 2001 by a Compromise and Release for $20.000 with the exception that the defendant remained liable for reasonable medical care related to the industrial injury.

In May and June of 2012, applicant's treating physician, oral surgeon William W. Evans, D.M.D., M.D.,filed a request for authorization for treatment, including notice that payment was expected at the time of surgery and implant placement. He went on to explain that because of the amount of implants he will need a payment before he can proceed completely with patient's treatment. Dr. Evans sought an advanced payment of $25,600.00. The treatment plan submitted to UR stated, "Surgical Fee and Payment: Payment is expected at the time of surgery."

Dr. Evans' s request for oral surgery and implant placement was forwarded to the utilization review process. On July 19, 2012, defendant issued a utilization review decision authorizing the requested care. The utilization review approval letter did not expressly approve payment of any particular sum of money to Dr. Evans, nor did it expressly mention any agreement to pay Dr. Evans in advance for his services.

Later, the defendant agreed to authorize the surgery but declined to make an advanced payment as requested stating "that advanced payment is not usual and customary for treatment provided in workers' compensation matters." In addition, the doctor was advised that payment would be made according to a fee schedule. The physician replied "As stated in your letter it is not usual and customary to collect up front for workers comp cases. It is however usual and customary to collect up front for Implant cases due to the overhead involved. For the extractions the payment within 60 days is acceptable. We are not agreeable to except [sic] fee schedule amounts without those amounts being disclosed. As of yet we have not received any information regarding the allowed fees. Once this information is received we will he able to inform you a to whether we are in agreement."

Ultimately on February 4, 2013, defendant issued a check in the amount of $25,510.00 to Dr. Evans as pre-payment for the dental services originally requested in June of 2012. Despite the payment, the parties went to trial on the issue of a Labor Code section 5814 penalty. The WCJ found defendant liable for a penalty, stating that: "This Judge finds no medical or legal basis for said delay and on that basis finds that defendant did unreasonably delay payment to Dr. Evans." The WCJ thus assessed a Labor Code section 5814 penalty in the amount of$6,377.50, which was calculated as 25% of the dental treatment unreasonably delayed by the defendant.."

The defendant Petitioned for Reconsideration which was granted, and the penalty was reversed in the split panel decision of Murphy v Petsmart.

In reversing, the majority concluded that "defendant did not act unreasonably because it had no obligation to pay for applicant's dental treatment in advance. Labor Code section 4603.2 makes clear that a defendant has no obligation to provide payment for medical services until 45 days after medical services have been "provided."

"Although we do not wish to belabor the point, "provided" in this context is the past participle of "provide," and thus indicates an action which has already been completed. Despite Dr. Evans's office insistence that defendant pay for treatment in advance, there is thus no obligation for the defendant to pay for medical or dental services before they have been provided."

Commissioner Sweeny dissented from the Opinion noting that the defendant was "clearly notified that payment in advance was required for treatment due to the high up-front cost required for this type of treatment. Defendant approved the treatment even in the face of the requirement for pre-payment, and after authorization did nothing to retract or clarify this authorization for months, until after applicant filed a Declaration of Readiness to Proceed (DOR) seeking WCAB intervention on the issue of medical treatment." Any "confusion in this case was engendered by defendant's approval of the suggested treatment without communicating that it did not agree to payment in advance until almost five months later. Under the specific factual scenario of this case, I would affirm the WCJ's decision that defendant in effect agreed to the treatment and billing terms. and that failure to promptly clarify the matter deprived the applicant of necessary medical treatment for many months." ...

Executives of a La Mesa-based firm that buys and renovates homes for resale pleaded guilty Thursday to a felony charge of unemployment tax evasion and a misdemeanor count of failure to have workers’ compensation insurance.

David Scott Wolfe, 48, and his company, Three Frogs Inc., along with Chief Financial Officer Jonathan D. Cox and Chief Operating Officer John Murphy, were charged last year with the tax and insurance fraud counts. Wolfe was also charged with a violation of OSHA safety standards in connection with a Nov. 12, 2013, tree-trimming accident that killed Joshua Pudsey, 42. He was trimming trees using a cherry picker outside a La Mesa home when a large branch from a 60-foot eucalyptus tree fell on him, crushing his head.

After a four-day preliminary hearing, Judge Leo Valentine ruled that Wolfe and two of his employees, Chief Financial Officer Jonathan D. Cox, 35, and Chief Operating Officer John Murphy, 36, should stand trial on felony and misdemeanor fraud charges. But the judge dismissed the felony safety standard charge against Wolfe, citing insufficient evidence.

Wolfe, Cox and Murphy are scheduled to be sentenced March 26.
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