Menu Close
The Division of Workers’ Compensation issued its Notice of Emergency Regulatory Action to implement the provider suspension process required under Assembly Bill 1244.

AB 1244 adds Labor Code section 139.21 which requires the Administrative Director to promptly suspend any physician, practitioner, or provider from participating in the workers’ compensation system if that individual has been convicted of any felony or misdemeanor involving fraud or abuse of the Medi-Cal program, Medicare program, or workers’ compensation system, if that individual’s license, certificate, or approval to provide health care has been surrendered or revoked, or if that individual has been suspended for fraud or abuse from participation in the Medicare or Medicaid programs.

AB 1244 requires the Administrative Director to provide notice of the suspension, which becomes effective after thirty (30) days from the date the written notice is sent, unless the physician, practitioner, or provider stays the suspension by requesting a hearing within ten (10) days from the date the written notice is sent.

AB 1244 mandates the adoption of regulations for suspending a physician, practitioner, or provider from participating in the workers’ compensation system if that individual meets the criteria specified above.

The documentation filed by the DWC in support of their request for emergency regulations claims that "High-profile workers’ compensation fraud prosecutions have revealed that many of these physicians, practitioners, or providers who have been indicted or convicted of fraud are involved in questionable patient care that is harming California’s injured workers. Capping schemes, kickbacks, and illegal patient referrals have resulted in injured workers who have been received unneeded or harmful treatment, been maimed for life, needed additional surgeries to repair incompetent work, and sadly, death of an injured worker’s infant due to failure to provide proper patient care, all driven by these fraudulent schemes rather than their medical needs."

The emergency regulations will be filed with the state’s Office of Administrative Law (OAL) on December 21, 2016. The regulations to be filed with OAL can be found on the DWC website.

OAL has up to 10 days to consider the rules, but may approve them before the 10 days have elapsed.

Upon OAL approval and filing with the Secretary of State, the regulations are effective for 180 days while the Division initiates formal rulemaking procedures to adopt permanent regulations.

For information on the OAL procedure, and to learn how you may comment on the emergency regulations, go to the OAL’s website.

A notice will be posted at the DWC website when the emergency regulations become effective ...
Read More
/ 2016 News, Daily News
Express Scripts Holding Co, the largest pharmacy benefit manager in the United States, said drug price inflation would likely be restrained going into 2017 and that scrutiny into pricing strategies was here to stay.

Express Scripts' comments come at a time when drug pricing is a hot political topic in the United States.

Prescription benefit managers (PBMs) negotiate drug benefits for health plans and employers, and have in recent years taken an increasingly aggressive stance in price negotiations with drugmakers.

They often extract discounts as well as after-market rebates from drugmakers in exchange for including their medicines in their formularies with low co-payments.

Drug price inflation will unlikely represent a "significant headwind" in 2017, Chief Executive Tim Wentworth said on a call with analysts, noting that the company has not seen the value of rebates change recently.

"You're probably going to see some restraint compared to what we have maybe seen in the last couple of years."

"We don't accept where drug prices are today. We believe they can and should be lower," Wentworth told Reuters in an email on Wednesday.

Fitch Ratings' outlook on the healthcare sector is stable, as the sector faces a low risk of deteriorating fundamentals but high levels of event risk due to regulatory and political uncertainty.

The rating agency also noted the issues involved in the drug pricing debate. Fitch said some drug manufacturers' practice of taking advantage of supply dislocations to increase prices on established products is "not a defensible business model in the long term." Fitch said companies that launch truly innovative new drugs will continue to command pricing power.

While most U.S. stocks rallied over the post election weeks, shares of biotechnology and pharmaceutical companies retreated after President-elect Donald Trump vowed in a magazine article to crack down on drug prices. Drug stocks fell after Mr. Trump was quoted in a Time Person of the Year article as saying: "I’m going to bring down drug prices."

Last week, Allergan Chief Executive Brent Saunders touched on the delicate politics of drug-pricing a health-care industry conference in New York City.

"I worry today that the pharma industry has a very false sense of relief or security because of a Trump administration and a Republican-controlled Congress," Mr. Saunders said. "I think we should recognize the drug-pricing issue is a populist issue. - To think President Trump isn’t a populist, that he won’t jump on the next EpiPen scandal and won’t Tweet against any company that does something like that, you’re fooling yourself." ...
Read More
/ 2016 News, Daily News
The U.S. Supreme Court on Monday cleared the way for the National Football League's estimated $1 billion settlement of concussion-related lawsuits with thousands of retired players to take effect, rejecting a challenge brought by a small group of dissenters.

Reuters reports that the eight justices refused to hear an appeal of a lower court ruling in April upholding the settlement, which resolved litigation brought by players who accused the NFL of covering up information that tied head trauma like that suffered playing football to permanent brain damage.

The settlement enables the NFL, the most popular U.S. sports league with billions of dollars in annual revenue, to avoid litigation that could have led to huge sums in damages and provided embarrassing details about how it has dealt with the dangers posed by head trauma in the violent sport.

League officials also have taken steps to outlaw some of the game's most brutal hits and changed how they deal with players who suffer concussions during games amid growing evidence linking such brain trauma to lasting neurocognitive damage.

The settlement calls for payments of up to $5 million each to former players diagnosed with certain neurological disorders, but it does not address chronic traumatic encephalopathy (CTE), a condition that has been linked to concussions.

Christopher Seeger, a lawyer who helped negotiate the settlement for the retired players, said they will now receive "much-needed care and support for the serious neurocognitive injuries they are facing" under the terms of the settlement.

Brian McCarthy, an NFL spokesman, said the league is "pleased that the Supreme Court has decided not to review the unanimous and well-reasoned decisions" of the lower courts that approved the deal.

The NFL will now work with lawyers for the players and the judge overseeing the settlement to "provide the important benefits that our retired players and their families have been waiting to receive," McCarthy added.

"This settlement will leave most NFL players on the sidelines, even those most affected by the long-term effects of concussions. Under the terms of the deal, many players diagnosed with CTE will get nothing," said Deepak Gupta, one of the lawyers representing the dozens of retired players challenging a deal they considered flawed.

In upholding the settlement in April, the 3rd U.S. Circuit Court of Appeals in Philadelphia wrote that those challenging it "risk making the perfect the enemy of the good." Under the settlement, the NFL does not admit guilt.

A smaller group of retired players objected to the agreement, saying it did not account for CTE. They also argued the deal unfairly favored currently injured retirees and left thousands of former players who have not yet been diagnosed with neurological diseases without a remedy.

The objectors included Scott Gilchrist, the son of retired player Carlton Chester "Cookie" Gilchrist, a Buffalo Bills running back in the 1960s whose lawyers say died from CTE at age 75 in 2011.
Read More
/ 2016 News, Daily News
Quest Diagnostics announced yesterday that it is investigating an unauthorized third-party intrusion into an internet application on its network. The company provided notice to individuals whose accounts have been affected.

Quest annually serves one in three adult Americans and half the physicians and hospitals in the United States, and has 43,000 employees

On November 26, 2016 an unauthorized third party accessed the MyQuest by Care360® internet application and obtained Protected Health Information (PHI) of approximately 34,000 individuals.

The accessed data included name, date of birth, lab results, and in some instances, telephone numbers. The information did not include Social Security numbers, credit card information, insurance or other financial information. There is no indication that individuals' information has been misused in any way.

When Quest Diagnostics discovered the intrusion, it immediately addressed the vulnerability. Quest is taking steps to prevent similar incidents from happening in the future, and is working with a leading cybersecurity firm to assist in investigating and further evaluating the company's systems. The investigation is ongoing and the unauthorized intrusion has been reported to law enforcement.

Quest Diagnostics has notified affected individuals via mail and established a dedicated toll-free number to call with questions regarding this incident. The number is (888) 320-9970, and can be reached Monday through Friday between 9:00 a.m. and 7:00 p.m. Eastern Time.

In February 2015, Anthem made history when 78.8 million of its customers were hacked. It was the largest health care breach ever, and it opened the floodgates on a landmark year. More than 113 million medical records were compromised last year, according to the Office of Civil Rights (OCR) under Health and Human Services.

And this year will be a record breaker for hacking.

As required by section 13402(e)(4) of the HITECH Act, the HHS Secretary must post a list of breaches of unsecured protected health information affecting 500 or more individuals. These breaches are now posted in a new, more accessible format that allows users to search and sort the posted breaches. By clicking the "Breach Submission Date" button on the top of the list, the breaches will be listed in reverse date order with the most recent shown at the top.

This HHS list shows 297 health information data breaches in 2016 as of December 7. Both large and small providers are listed.

Noteworthy California hacks include Kaiser Permanente Health Plan Inc, of both Northern and Southern California. It reports being hacked on November 11, 2016 as a result of unauthorized access of a network server. The USC Keck and Norris Hospitals reported a network server hack on September 21, 2016 ...
Read More
/ 2016 News, Daily News
The WCAB has issued a number of panel level decisions since SB 863 eroding the jurisdiction of the UR and IMR process for technical mistakes that were claimed to have "invalidated" the process. These cases favored handing the issue of appropriate medical treatment over to the WCJ to decide. As a result UR/IMR seemed to be subjected to a slow death by a thousand such cuts.

However, the trend of erosion of UR/IMR jurisdiction may have suffered a setback at the hands of a June 2016 Court of Appeal published decision that has now been followed in at least one subsequent panel decision.

In the precedent setting case, Dorothy Margaris appealed the IMR determination to the appeals board. She argued argued that the IMR determination was invalid because Maximus failed to issue it within the 30-day time period . The judge agreed the IMR determination was issued 13 days late, but nevertheless found the determination was valid and binding on the parties, concluding that an untimely IMR determination "does not confer jurisdiction on the [workers’ compensation judge] to decide any medical treatment issues."

A majority of the three-member panel agreed with applicant and went on to find, contrary to the IMR determination, that the proposed treatment was supported by substantial medical evidence and was consistent with the treatment schedule promulgated by the director. One member of the panel dissented, and would have found that the IMR determination, though untimely, was valid and binding on the parties.

But the Court of Appeal intervened, disagreed with the WCAB and reversed in the published case of California Highway Patrol and SCIF v WCAB (Margaris).

The Court of Appeal ruled that the 30-day time limit in section 4610.6, subdivision (d), is directory and, accordingly, an untimely IMR determination is valid and binding upon the parties as the final determination of the director. The Court of Appeal interpretation of the statute in this manner is consistent with long-standing case law regarding the mandatory-directory dichotomy, and implements the Legislature’s stated policy that decisions regarding the necessity and appropriateness of medical treatment should be made by doctors, not judges.

Shortly after Magaris was decided, the WCAB reviewed the case of Christopher Tyni v City of Montebello. Tyni sustained industrial injury to his right knee while employed by the City as a Police Officer.

He sought reconsideration of the Findings And Order of the WCJ, who found that the Independent Medical Review (IMR) in this case was "untimely," but that the untimely IMR determination "does not confer jurisdiction on the WCJ to decide any medical treatment issues."

The panel affirmed that the "WCAB has no authority to determine the treatment dispute because the time periods for completion of IMR contained in Labor Code section 4610.6(d) are directory not mandatory, and the IMR determination in this case is valid and binding upon applicant even though it issued outside the time described in the statute.1 (California Highway Patrol v. Workers' Comp. Appeals Board (Margaris) (June 22, 2016, No. B269038) _Cal.App.4th_ [2016 Cal. App. LEXIS 491] (Margaris)." ...
Read More
/ 2016 News, Daily News
California Attorney General Kamala D. Harris announced that California, along with 42 other states and the District of Columbia, has reached a $19.5 million agreement with biopharmaceutical company Bristol-Myers Squibb over allegations that the company illegally marketed the popular atypical antipsychotic drug Abilify. Harris secured $1.3 million of the overall settlement for California.

In 2009, California and other states launched a multistate consumer protection investigation of Otsuka America Pharmaceutical, Inc., which manufactures Abilify, and Bristol-Myers Squibb, which is largely responsible for promoting Abilify.

Abilify is approved to treat schizophrenia, bipolar disorder, major depressive disorder and Tourette's disorder in adults and children, but Bristol-Myers Squibb (BMS) allegedly prescribed its block-buster drug to treat elderly patients with dementia and for unapproved uses on children.

The Abilify complaint claims BMS promoted the drug off-label (not FDA approved) starting in 2002 for use in the elderly with symptoms consistent with dementia and Alzheimer's disease. The drug had no clinical trials to establish its safety and efficacy for those uses. In 2006 a black box warning was added to the label, stating that that elderly patients with dementia-related psychosis who are treated with antipsychotic drugs have an increased risk of death.

Since its FDA approval in 2002, Abilify was given to more than 24 million patients. It brought in more than $6.4 billion in revenues for Bristol Myers and the manufacturers - Otsuka America Pharmaceutical Inc., and Otsuka Pharmaceutical Co. Ltd. (In April 2015 the FDA approved the first generic versions of Abilify, generic aripiprazole).

The complaint alleges Bristol-Myers Squibb promoted Abilify for use in elderly patients with symptoms consistent with dementia and Alzheimer's disease despite the lack of FDA approval for these uses, and without first establishing the drug's safety and efficacy for those uses.

In 2006, Abilify received a "black box" warning stating that elderly patients with dementia-related psychosis who are treated with antipsychotic drugs have an increased risk of death.

The complaint also alleges the company promoted Abilify for use by children, which was not approved by the FDA.

The complaint also alleges Bristol-Myers Squibb minimized and misrepresented risks, thereby making false and misleading representations about Abilify's risks.

The complaint alleges the company overstated the findings of scientific studies by not revealing limitations that would affect the interpretation of study results.

Bristol-Myers Squibb’s marketing of any formulation containing the active ingredient aripiprazole will be restricted by the terms of the settlement.

The company will be prohibited from making false or misleading claims about Abilify, about its safety or efficacy in comparison with other drugs, and about the implications of clinical studies relating to the drug.

The company also will be subject to limitations on financial incentives to sales representatives and health care providers, dissemination of information that may promote off-label use of Abilify, and other practices affecting off-label promotion.
Read More
/ 2016 News, Daily News
The workers' compensation industry is always interested in better medical outcomes for injured workers. What is difficult is to set standards for what measures and quantifies a better outcome.

Holding a treating physician accountable for a treatment outcome starts and ends with a competent outcome measure used throughout the treatment process. In scientific terms, this is know as the "pre-test" and "post-test" assessment model. Simply stated, measure the attributes to be treated before anything is done. Then perform the medical or surgical intervention. Then measure the outcome to see if it worked. In this way you can circumvent vague generalized sweeping medical chart entries like "the patient came in today much improved" and replace that with competently measured data.

Orthopaedic surgeons traditionally rely on X-rays, MRI, CT scans, physical measurements, and functional tests for patient outcomes assessments, but this is changing thanks to new technology that communicates ongoing, real-time outcomes feedback from patients, according to research published in the Journal of the American Academy of Orthopaedic Surgeons (JAAOS).

Two studies described the benefits of the National Institutes of Health (NIH) Patient-Reported Outcomes Measurement Information System (PROMIS) to objectively and quantifiably assess and track patient symptoms over time. PROMIS also evaluates the impact of surgical and nonsurgical interventions using the same system to compare and contrast treatment options.

"Orthopaedic surgeons are interested in accurately measuring the outcomes of our treatments," said Alpesh A Patel, professor of orthopaedic surgery at Northwestern University School of Medicine, in a companion editorial. "Of all the advances in our profession in the last 20 years, one of the most important has been the renewed focus on our patients and their own interpretations of their care."

New PROMIS approaches apply principles of item-response theory, which allows for reliable and efficient estimation of underlying health traits to assess physical function in the upper and lower extremities. The system fosters shared physician-patient decision making and is proving superior to legacy measures. It has been validated in patient populations with orthopaedic disorders of the foot and ankle, upper extremity, and spine.

Until now, patient outcomes scores were evaluated almost exclusively for research purposes, but the data are becoming more valuable in helping doctors and patients assess clinical progress and recovery from surgery. Typically, patients answer surveys in the doctor’s office on iPads and their responses go to a data warehouse for scoring and near-immediate transmission to the physician.

"The data we receive from patients reporting on their pain, level of disability, daily function, and overall quality of life can be compared with hundreds of other patients with the same disease or injury," said Darrell Brodke, coauthor of one of the studies and professor and vice chair of the Department of Orthopaedics at University of Utah School of Medicine. "So the conversation with patients would be: ‘This is where you’re at now and here is where we expect you to be.'"

Brodke added that use of patient-reported outcomes data is expanding rapidly in orthopaedic practices for tracking and assessing patient progress following surgery and also for determining whether surgery is the most appropriate option.

"PROMIS is our best path forward for capturing high-quality, meaningful information for our patients," noted Dr. Patel. "PROMIS will be the new standard of patient-reported outcome measures and should be incorporated into orthopaedic research moving forward. How we define success and value will continue to evolve, but patients’ perspectives on their care should remain at the centre of our discussions." ...
Read More
/ 2016 News, Daily News
California Senate Bill (SB) 863, signed into law in 2012, may have contributed to decreases in medical payments per workers’ compensation claim in 2013 and 2014, according to CompScope - Medical Benchmarks for California, 17th Edition, a study by the Workers Compensation Research Institute (WCRI).

According to the study, medical payments per claim in California decreased 4 percent in 2013 and then 3 percent in 2014 for claims with more than seven days of lost time at 12 months of experience, mainly driven by decreases in payments per claim for nonhospital services.

"California’s experience differed from most of the other 17 states WCRI studied since in many states, medical payments per claim grew from 2012 to 2014," said Ramona Tanabe, WCRI’s executive vice president and counsel. "The decrease in medical payments per claim in California likely reflects the impact of SB 863 provisions."

Effective January 2013, SB 863 reduced the fee schedule rates for services at ambulatory surgery centers (ASCs). Following this policy change, the average ASC facility payment per claim decreased 27 percent from 2012 to 2014, according to the study. Future WCRI studies will continue to monitor the full impact of SB 863.

Starting in 2014, the law began phasing in the use of a fee schedule based on Medicare's resource-based relative value scale (RBRVS) for professional services over a four-year period. WCRI reported that prices paid for primary care services increased while prices paid for specialty care decreased in 2014 and 2015. These changes are consistent with the policy goal.

Other reform provisions that may have contributed to decreases in medical payments per claim include eliminating separate reimbursement for implantable medical devices, hardware, and instruments for spinal surgeries; requiring a $150 fee to file liens against an employee's workers' compensation benefits and a $100 activation fee for liens already filed; and establishing an independent medical review (IMR) process.

Among other study findings:

1) California had higher medical payments per claim compared with many other study states.

2) Payments per claim for hospital services remained stable from 2009 to 2014 in California.

WCRI studied medical payments, prices, and utilization in 18 states, including California, looking at claim experience through 2015 on injuries that occurred mainly in 2009 to 2014. WCRI’s CompScope Medical Benchmark studies compare payments from state to state and across time. Copies of this report can be ordered from the WCRI web site.

The Cambridge-based WCRI is recognized as a leader in providing high-quality, objective information about public policy issues involving workers' compensation systems ...
Read More
/ 2016 News, Daily News
The Senate voted overwhelmingly to support sweeping legislation that will reshape the way the Food and Drug Administration approves new medicines. It will also provide funding for cancer and Alzheimer's research, help fight the opioid epidemic, expand access to mental health treatment and advance research into precision medicine.

According to Reuters Health, the 21st Century Cures Act was passed last week by the House of Representatives and will now go to President Barack Obama to sign into law. Supporters say it will speed access to new drugs and devices, in part by allowing clinical trials to be designed with fewer patients and cheaper, easier-to-achieve goals.

"For the second consecutive year, the Senate is sending the President another Christmas miracle for his signature," Senator Lamar Alexander, a Republican from Tennessee said in a statement. "Last year, it was the Every Student Succeeds Act, and this time, it’s the 21st Century Cures Act - a bill that will hbelp virtually every American family."

Critics of the legislation say it gives massive handouts to the pharmaceutical industry and will lower standards for drug and medical device approvals.

"This gift - which 1,300 lobbyists, mostly from pharmaceutical companies, helped sell - comes at the expense of patient safety by undermining requirements for ensuring safe and effective medications and medical devices," consumer watchdog Public Citizen said in a statement.

Democratic Senator Elizabeth Warren was among the handful of senators who voted against the bill, as was independent senator and former Democratic presidential candidate Bernie Sanders. Each decried what they described as big handouts to the pharma industry. Even so the bill passed 94-5. The House passed it by a vote of 392-26.

The $6.3 billion act, sponsored by Republican Representative Fred Upton, authorizes $4.8 billion for the National Institutes of Health and $500 million to the Food and Drug Administration.

It also calls for $1 billion over two years to battle the opioid epidemic. On Tuesday the Drug Enforcement Administration issued a report showing that in 2014 about 129 people died every day as a result of drug poisoning. Of those, 61 percent are opioid or heroin related.

"Opioids such as heroin and fentanyl - and diverted prescription pain pills - are killing people in this country at a horrifying rate," Acting Administrator Chuck Rosenberg said. "We face a public health crisis of historic proportions."

The bill also calls for $1.8 billion in funding for Vice President Joseph Biden's Cancer Moonshot initiative designed to bolster cancer research by reducing bureaucracy and promoting research collaboration.

Critics note that the money described in the bill must be appropriated by separate funding bills and that the money may ultimately never materialize. Yet the changes to the clinical trial process, something long sought by the drug industry, will be set in stone regardless of whether money for the research projects is forthcoming.

Among those changes: Greater prominence will be given to "real world" evidence gathered outside the framework of a randomized, controlled clinical trial, the gold standard for determining whether a drug is safe and effective. Such evidence could be much easier for drug companies to collect.

"The passing of 21st Century Cures Act is a show of extraordinary bipartisan unity after a divisive election that should be celebrated," said Ellen Sigal, chair of the patient advocacy group Friends of Cancer Research.

Under the Act patient input will be formally incorporated into the FDA's drug review process.

Funding for the Act will be offset by reductions in some Medicaid payments and through the sale of oil from the Strategic Petroleum Reserve. The White House supports the bill but said earlier it was concerned that draining the Petroleum Reserve "continues a bad precedent of selling off longer term energy security assets to satisfy near term budget scoring needs." ...
Read More
/ 2016 News, Daily News
Reserving estimates for claims with lifetime awards have been a complex task, and for years the assumption has been that the life expectancy of cliamants will continue to increase, thus requiring higher reserves and ultimately higher claim costs. Similarly, the price for annuities, and Medicare Set Aside trusts have been based upon an assumed life expectancy.

In most of the years since World War II, life expectancy in the U.S. has inched up, thanks to medical advances, public health campaigns and better nutrition and education.

But, according to a study just released by the Centers for Disease Control, last year it slipped, an exceedingly rare event in a year that did not include a major disease outbreak. Other one-year declines occurred in 1993, when the nation was in the throes of the AIDS epidemic, and 1980, the result of an especially nasty flu season. In 2015, rates for 8 of the 10 leading causes of death rose. Even more troubling to health experts: the U.S. seems to be settling into a trend of no improvement at all.

Gender matters: For males, life expectancy fell to 76.3 years from 76.5 years. For women, life expectancy decreased to 81.2, about 0.1 year from 2014.

The culprits for our declining years were increases in mortality from heart disease, chronic lower respiratory diseases, unintentional injuries, stroke, Alzheimer’s disease, diabetes, kidney disease, and suicide. Not surprisingly, that group plus cancer and Alzehimer's disease make up the top 10 causes of U.S. deaths.

Heart disease and cancer are the runaway top killers. The death rate from heart disease increased almost 1%. The death rate from cancer actually fell 2.7%.

Heart disease rates are probably a function of the U.S. obesity epidemic, say the obesity epidemic, Donald Lloyd-Jones, head of preventive medicine at Northwestern University’s Feinberg School of Medicine, told the Wall Street Journal. Obesity is blamed for increases in rates of hypertension, diabetes and other heart-related problems.

"We’re reaping what we’ve sown," Lloyd-Jone said. "It’s a clear causal chain."

But some researchers are also pointing to upticks in suicides and drug use - particularly among poorer white Americans - as potentially contributing factors. "Clearly, that could be related to the economic circumstances that many Americans have experienced in the last eight years, or so, since the recession," University of Pennsylvania sociologist Irma Elo told NPR.

The United States ranks below dozens of other high-income countries in life expectancy, according to the World Bank. It is highest in Japan, at nearly 84 years.

It is yet too early to determine if this is a trend, or an anomaly. In either case, claims administrators continue to be caught in the middle in terms of justifying reserve estimates for lifetime awards ...
Read More
/ 2016 News, Daily News
Plaintiffs in these actions for personal injury and wrongful death allege that take-home exposure to asbestos was a contributing cause to the deaths of Lynne Haver and Johnny Kesner, and that the employers of Lynne’s former husband and Johnny’s uncle had a duty to prevent this exposure.

In the first case, Johnny Blaine Kesner, Jr., was diagnosed with perotineal mesothelioma in February 2011. He filed suit against a number of defendants he believed were responsible for exposing him to asbestos and causing his mesothelioma.

Johnny’s uncle, George Kesner, worked at the Abex plant in Winchester, Virginia, for much of George’s life, where George was exposed to asbestos fibers released in the manufacture of brake shoes. According to George, Johnny spent an average of three nights per week at his uncle’s home from 1973 to 1979. When Johnny was at his uncle’s home, he would sometimes sleep near George or roughhouse with George while George was wearing his work clothes.

Johnny alleged that his exposure to asbestos dust from the Abex plant, carried home on his uncle’s clothes, contributed to his contracting mesothelioma. Johnny died in December 2014, after the Court of Appeal issued its judgment in this matter. Cecelia Kesner is his successor in interest.

In the companion case, Lynne Haver was diagnosed with mesothelioma in March 2008 and died in April 2009. Her children, Joshua Haver, Christopher Haver, Kyle Haver, and Jennifer Morris (the Havers), filed a wrongful death and survival action alleging negligence, premises owner and contractor liability, and loss of consortium. They allege that Lynne’s exposure to asbestos by way of her former husband, Mike Haver, caused her cancer and death.

Mike was employed by the Atchison, Topeka, and Santa Fe Railway, a predecessor of BNSF Railway Company from July 1972 through 1974. In his position as fireman and hostler for BNSF, Mike was exposed to asbestos from pipe insulation and other products. The Havers allege that Mike carried home these asbestos fibers on his body and clothing, and that Lynne was exposed through contact with him and his clothing, tools, and vehicle after she began living with him in 1973.

Neither the Havers’ nor Kesner’s suit reached a jury as a result of the holding in Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, 34 (Campbell), which held that "a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business." The California Supreme Court granted review in both cases and consolidated them for argument and decision. The dismissal of their cases was reversed in Kesner v Superior Court.

In reversing the California Supreme Court held that the duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers.

Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.

This duty also applies to premises owners who use asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners, such as the rules of contractor liability.

Importantly, the Supreme Court held that this duty extends only to members of a worker’s household. Because the duty is premised on the foreseeability of both he regularity and intensity of contact that occurs in a worker’s home, it does not extend beyond this circumscribed category of potential plaintiffs.

The obvious question that arises out of this decision is what other types of toxic claims will follow? Or will this case be strictly limited to asbestos exposure? If not limited only to asbestos, the potential for this case to open a Pandora's box of secondary claims by immediate family members of workers injured by toxic materials in the workplace will no doubt follow. These secondary claims will not be limited to worker's compensation by the exclusive remedy rule, and it is unclear what insurance, if any, will be responsible for indemnification ...
Read More
/ 2016 News, Daily News
This case involves the applicability of the workers’ compensation exclusivity rule to an unusual set of facts.

Plaintiff Kathy Lee was employed as a cashier of defendant West Kern Water District, at the district’s office, working behind a partition where customers came to pay their water bills, often in cash.

She sued the district and four coemployees for assault and intentional infliction of emotional distress after the coemployees staged a mock robbery with Lee as the victim. The district provided its employees with some training on how to respond to a robbery. The complaint alleged that four supervisors formed a plan to test how the district’s female employees would respond if they believed they were really being robbed.

In the mock robbery, one of the district’s managers entered the district’s office in a mask and confronted Lee at the cashier’s window with a note demanding money and saying he had a gun. Lee, who had not been informed of the planned mock robbery, handed over the money and subsequently was treated for psychiatric injury.

The complaint alleged that after the robbery, Lee was crying, shaking, and nauseous and finally had to go home. She later suffered from fears, depression, nightmares, headaches, loss of appetite, and ongoing nausea. She sought psychological treatment and had to use all her accrued sick leave and vacation time during an extended absence from work.

Lee claimed that, even if the facts satisfied the Labor Code section 3600 conditions for an exclusive workers’ compensation remedy, she could still recover damages in this lawsuit because an exception applied, the assault exception of Labor Code section 3602, subdivision (b)(1).

A jury instruction was allowed pertaining to the applicability of the exclusive workers’ compensation remedy was requested by Lee and objected to by defendants. It said "employer conduct is considered outside the scope of the workers’ compensation scheme when the employer steps outside of its proper role or engages in conduct unrelated to the employment."

The jury awarded her $360,000, however the trail court granted the motion for a new trial. The trial court reasoned that, because the complaint conceded the workers’ compensation exclusivity rule applied unless the assault exception was proven, the jury should not have been instructed with CACI No. 2800, which said the defense had to prove the elements of the exclusivity rule. Instead, the jury should have been told the exclusivity rule applied unless Lee established the assault exception.

The order granting a new trial was reversed in the published case of Lee v Western Kern Water District.

Labor Code section 3602, subdivision (a), repeats the rule that workers’ compensation benefits are the exclusive remedy for industrial injury. Subdivision (b) of that section lists three exceptions to the exclusivity rule. The one pertinent here is: "Where the employee’s injury or death is proximately caused by a willful physical assault by the employer." (Lab. Code, § 3602, subd. (b)(1).) Subdivision (c) makes explicit the converse of the exclusivity rule, i.e., that ordinary civil remedies apply to injuries falling outside the workers’ compensation system: "In all cases where the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shall be the same as if this division had not been enacted." (Lab. Code, § 3602, subd. (c).)

Labor Code section 3601 extends the exclusivity rule to bar tort actions against coemployees who cause injury while acting in the scope of employment ...
Read More
/ 2016 News, Daily News
A federal jury in Dallas last Thursday ordered Johnson & Johnson and its DePuy Orthopaedics unit to pay more than $1 billion to six California plaintiffs who said they were injured by Pinnacle hip implants.

The jurors found that the metal-on-metal Pinnacle hip implants were defectively designed and that the companies failed to warn consumers about the risks.

J&J, which faces more than 8,000 lawsuits over the hip implants, said in a statement it would immediately appeal the verdict and was committed to defending itself and DePuy from further litigation over the Pinnacle devices.

The six plaintiffs awarded more than $1 billion are California residents who were implanted with the hip devices and experienced tissue death, bone erosion and other injuries they attributed to design flaws. Plaintiffs claimed the companies promoted the devices as lasting longer than devices that include ceramic or plastic materials.

According to plaintiff's lawyer Mark Lanier, the total verdict of $1.041 billion included $32 million in compensatory damages. The rest were punitive damages.

Verdicts of such size are often scaled back by courts. In July, the judge presiding over this case, U.S. District Judge Edward Kinkeade, reduced a $500 million verdict in an earlier Pinnacle implant case to $151 million, citing a Texas state law that limits punitive damages awards.

J&J and DePuy have been hit with nearly 8,400 lawsuits over the devices, which have been consolidated in Texas federal court. Test cases have been selected for trial, and their outcomes will help gauge the value of the remaining claims.

The verdict on Thursday came in the third test case, with the second producing the earlier $500 million verdict. J&J and DePuy were cleared of liability in the first test case in 2014

The company rejected a $1.8 million settlement offer from the plaintiffs before trial, Lanier said.

The plaintiffs in the second test case have appealed Kinkeade’s decision to cut the award. Johnson & Johnson and DePuy have also appealed the jury verdict in the case.

John Beisner, J&J’s attorney, said the company will ask the appeals court to postpone any additional trials over the implant defects.

DePuy ceased selling the metal-on-metal Pinnacle devices in 2013 after the U.S. Food and Drug Administration strengthened its artificial hip regulations.

J&J and DePuy also paid $2.5 billion that year to settle more than 7,000 lawsuits over its ASR metal-on-metal hip devices. The ASR devices were recalled in 2010 due to high failure rates.
Read More
/ 2016 News, Daily News
A Fresno County jury has awarded more than $600,000 to a respiratory therapist who said she was wrongfully terminated at a sleep medicine center because she blew the whistle on Medicare fraud.

Tansi A. Casillas, 51, of Fresno, alleged that her employer, Central California Faculty Medical Group, eliminated her position at University North Medical Specialty Center in retaliation for the fraud complaints she made and for refusing to perform medical services outside the scope of her respiratory care license. Central California Faculty Medical Group is a multispecialty practice affiliated with UCSF-Fresno. It operates several medical offices, including University North Medical Specialty Center for pulmonary and sleep medicine.

In her lawsuit, Casillas said doctors left the responsibility to her to have face-to-face evaluations with patients on continuous positive airway pressure (CPAP), a treatment that keeps the airways open for people who have sleep apnea and other breathing problems. The patient and Medicare were later billed for a doctor’s visit, even though the patient was not seen by a doctor, the lawsuit said.

According to the lawsuit, the faculty medical group’s compliance department investigated Casillas’ claims and found the medical group had "erroneously" overbilled Medicare but that no fraud had occurred. The overbilling resulted in the medical group’s reimbursing Medicare for the overcharges, the lawsuit said.

The jury found Casillas had been retaliated against for being a whistleblower and awarded her $131,200 in economic and emotional damages. And later they awarded her $500,000 in punitive damages.

Karen Rushing, human resources director for Central California Faculty Medical Group, said in an email Wednesday that the medical practice strongly denied wrongdoing.

The faculty medical group, represented by San Francisco lawyer Steven R. Blackburn, argued in a motion to dismiss the case, saying that Casillas was terminated for economic reasons that were aggravated by "her bad behavior in interacting with her coworkers."

According to Casillas’ lawsuit, the medical group falsely accused her of violating the company’s conflict of interest policy as part of its retaliation for being a whistleblower.

Casillas had worked as a respiratory therapist for the faculty medical group since November 2008 and had received good performance evaluations before her whistleblowing, the lawsuit said. But she worked under a "microscope" after she refused to perform medical services outside the scope of her respiratory care license and refused to participate in unlawful billing to Medicare, the lawsuit said.

She first voiced concerns about Medicare fraud to Dr. Lynn Keenan, medical director for sleep medicine at North Medical Specialty, on April 8, 2013, the lawsuit said. Concerned that the issue had not been taken seriously, she called the faculty medical group’s compliance officer and the National Board of Respiratory Care on April 9, 2013.

The following day, retaliation began, the lawsuit said.

The jury found that Casillas’ disclosure about Medicare fraud and her refusal to participate in medical services outside the scope of her respiratory care license were contributing factors in the faculty medical group’s decision to discharge her. And the jury found the medical practice would not have discharged her for legitimate, independent reasons ...
Read More
/ 2016 News, Daily News
The Workers’ Compensation Appeals Board has issued a notice of public hearing regarding a proposed addition and amendments to its Rules of Practice and Procedure.

Lien claims must be filed electronically on a form approved by the WCAB. (Lab. Code, § 4903.05(a); Cal. Code Regs., tit. 8, §10770(b)(1)(A).)

Senate Bill (SB) 1160 (Stats. 2016, ch. 868) amended Labor Code section 4903.05 to require section 4903(b) lien claimants to file an original bill and a declaration that includes information regarding the type of services provided by the lien claimant. To effectuate these legislative changes, the WCAB proposes amending rule 10770 and adopting rule 10770.7.

A lien claimant’s failure to timely file this declaration shall result in the dismissal of the lien with prejudice by operation of law per Labor Code section 4903.05(c)(3). This rulemaking will mandate use of an e-filed declaration form in order to ensure uniform procedures for lien claimants who first file their liens after January 1, 2017 and current lien claimants who are required to file a declaration by July 1, 2017.

The public hearing is scheduled on Wednesday, January 4 at 10 a.m. in the Milton Marks Conference Center, Santa Barbara Room of the Hiram Johnson State Office Building at 455 Golden Gate Avenue in San Francisco. Members of the public may also submit written comment on the proposed rules amendments until 5 p.m. that day.

The notice, draft regulations text and initial statement of reasons are posted online.

Comments may be submitted by e-mail to or they may be mailed to: Workers’ Compensation Appeals Board Attention: Annette Gabrielli, Regulations Coordinator P.O. Box 429459 San Francisco CA 94142-9459.

Although equal weight will be accorded to oral and written comments, the WCAB prefers written comments to oral testimony and prefers written comments submitted by e-mail. If written comments are timely submitted, it is not necessary to present oral testimony at the public hearing ...
Read More
/ 2016 News, Daily News
It is with great sadness that we announce the passing of applicant's attorney David Wallace Ashton of Milburn and Ashton. He was born March 3, 1956 and was 60 years of age when he died from cancer on December 1.

His offices has provided legal services to the residents of the Antelope Valley and surrounding communities for more than 30 years. He was very well respected in the workers' compensation community.

Mr. Ashton graduated from California Polytechnic State University San Luis Obispo with Honors in 1978. He obtained his Master’s Degree in Education from Azusa Pacific University, and his Juris Doctor from University of Laverne in 1992.

He was admitted to the State Bar of California on December 14, 1992, and to the United States Federal District Court on January 11, 1993.

Mr. Ashton has been practicing workers’ compensation law for over 22 years, primarily before the Van Nuys, Bakersfield and San Bernardino Workers’ Compensation Appeals Boards.

He is an active member of the California Applicants Attorney Association (CAAA), the Antelope Valley Bar Association, and the State Bar of California. Mr. Ashton had extensive trial and litigation experience before both the Workers’ Compensation Appeals Board and the Central District California Court of Appeals.

One of his co-workers - Jennifer Loza - said that "Dave was the best boss, and also one of the greatest human beings, in the whole world. My heart is broken. My deepest condolences to Sharon and the kids, who were always the most important things to him. Dave, you fought like a honey badger."

Services will be held at Joshua Memorial Chapel 808 East Lancaster Blvd. Lancaster, CA 93535 Wednesday December 7th, 2016 at 11:00 am, Graveside Service to follow at 12:00 pm. In lieu of flowers please send donations to City of Hope and PSP Society ...
Read More
/ 2016 News, Daily News
The Division of Workers’ Compensation (DWC) Acting Administrative Director George Parisotto has appointed James R. Libien Esq., to serve as a member of the Workers’ Compensation Ethics Advisory Committee. The appointment is effective today.

Mr. Libien is counsel with Renn Sloan Holtzman Sakai, specializing in workers’ compensation.

He has represented public and private employers before the Workers’ Compensation Appeals Board (WCAB). He has also served as a pro tem judge and as a mediator. He will fill the position to be held by an attorney who formerly practiced before the WCAB and who usually represented defendants, which was previously held by the late Robert Ruby.

The ethics advisory committee, established in 1995 by Title 8, California Code of Regulations, section 9722, reviews all ethics complaints from the public against workers' compensation administrative law judges. The committee reviews all complaints without learning the names of complainants or judges, and then makes recommendations to the administrative director and the DWC court administrator. The committee meets quarterly and members serve without compensation.

As civil servants, WCALJs are not subject to review by the California Commission on Judicial Performance, the agency responsible for investigating misconduct complaints directed at judges serving on the Supreme, Superior, and Appellate courts.

The regulation provides that the committee must include: three members of the public individually representing organized labor, insurers and self-insured employers; an attorney who formerly practiced before the WCAB and who usually represented insurers or employers; an attorney who formerly practiced before the WCAB and who usually represented applicants; a presiding judge; a workers’ compensation administrative law judge (WCALJ) or retired WCALJ; and two members of the public outside the workers' compensation community.

A judicial ethics complaint form and instructions can be found on the forms page of the DWC website. Anyone may file a complaint with the EAC. Complaints may be submitted anonymously, but all complaints must be presented in writing.

An EAC case is typically opened after the DWC receives a letter from an injured worker, an attorney, or a lien claimant (i.e., medical provider) who has been a party to a proceeding before a WCALJ employed by the DWC, and the complaint alleges ethical misconduct by that judge. The DWC then sends a letter to the complainant acknowledging that the complaint was received by the EAC.

Each complaint that alleges misconduct by a judge is formally reviewed by the EAC. To ensure objectivity by the reviewing members on the EAC, the committee adopted a policy requiring that the names of the complainant, the WCALJ, and witnesses as well as the specific DWC office where the alleged misconduct occurred be redacted from the copies of complaints reviewed at each meeting.

The committee prepares an annual report of its findings for the year. The latest report was published last March ...
Read More
/ 2016 News, Daily News
The Division of Workers’ Compensation (DWC) has posted an adjustment to the inpatient hospital section of the Official Medical Fee Schedule (OMFS) to conform to changes in the 2017 Medicare payment system as required by Labor Code section 5307.1. The effective date of the changes is January 1, 2017.

Under the regulatory definitions the term "Hospital" means any facility as defined in Section 1250 of the Health and Safety Code.The term "Inpatient" means a person who has been admitted to a hospital for the purpose of receiving inpatient services. A person is considered an inpatient when he or she is formally admitted as an inpatient with the expectation that he or she will remain at least overnight and occupy a bed, even if it later develops that such person can be discharged or is transferred to another facility and does not actually remain overnight.

The Medicare FY17 update to the inpatient prospective payment system was published on August 22, 2016 in the Federal Register (Vol. 81 FR 56762). Using this publication, the DWC calculates changes to Title 8, California Code of Regulations, sections 9789.20 - 9789.25 consistent with the Labor Code requirements.

L.C. 5307.1(g)(1)(A)(i) provides that the annual inflation adjustment for inpatient hospital facility fees for California workers' compensation claims shall be determined solely by the estimated increase in the hospital market basket. Thus, in lieu of using the Medicare FY2017 rates to determine the updated OMFS amounts, the estimated increase in the hospital market basket was applied to the 2016 OMFS rates for dates of discharge effective, January 1, 2017.

Based on the Medicare Hospital Inpatient Prospective Payment System, all hospitals are paid the same standard rate for operating costs (based on the rate for hospitals located in large urban areas). The 2016 rate was $6,269.83. The estimated increase in the market basket is 2.7%. The 2017 standard rate under the OMFS will become $6,439.11 ($6,269.83 x 1.027).

Pursuant to Labor Code section 5307.1(g)(2), the Acting Administrative Director of the Division of Workers’ Compensation orders that to the extent references to the Federal Register or Code of Federal Regulations are made in any sections starting from section 9789.20 through 9789.25 of Title 8 of the California Code of Regulations, said section is hereby amended to incorporate by reference the applicable Federal Register final rule (including correction notices and revisions) and Federal Regulations in effect as of the date the Order becomes effective, to be applied to discharges occurring on or after January 1, 2017.

Further information and adjustments to the inpatient hospital section of the Official Medical Fee Schedule can be found on the DWC website’s OMFS page ...
Read More
/ 2016 News, Daily News
John D. Warbritton III, M.D has been an orthopedic surgeon in Oakland since 1986. He is a graduate of Harvard Medical School and a Diplomate of American Board of Orthopaedic Surgery and a fellow of the American Board of Orthopaedic Surgery and the American Academy of Orthopaedic Surgeons.

He became a Qualified Medical Examiner in 1992, its’ inaugural year. Until his federal suspension order, he maintained an active practice treating injured workers and had authored hundreds of medical-legal evaluations each year. He was Chairman of the Department of Orthopedic Surgery at Alta Bates Summit Medical Center in Oakland from January 2003 to January 2009.

In 2007, Dr. Warbritton started Warbritton & Associates Impairment Rating Specialists, which provides medical legal evaluations from specialists in a growing number of fields.

His medical practice has now, at least temporarily, come to a halt when Dr. Warbritton represented by counsel appeared for an arraignment on a federal criminal Indictment on October 18, 2016 in case CR 16-00423 CRB BZ pending in the United States District Court, Northern District of California. As the defendant in that case he "agreed to not engage in the practice of medicine, which includes seeing patients and reviewing medical records". The parties stipulated, and the Court entered the Order that "John David Warbritton, III, M.D., is prohibited from practicing medicine in any manner, during the pendency of the above-captioned criminal proceeding. This Order shall remain in effect until the conclusion of this criminal proceeding or further order of the Court."

And on November 21, Kamala Harris acting in her capacity as California Attorney General filed an Accusation against Dr. Warbritton seeking to revoke or suspend his license to practice medicine.

According to the allegations of her Accusation, Dr. Warbritton is subject to disciplinary action under Business and Professions Code sections 2234 (a) and (f) for unprofessional conduct and Section 726 in that he in engaged in sexual misconduct while evaluating two patients.

The allegations claim specific acts of sexual misconduct while evaluating two different women who were referred for medical examinations by industrial insurance companies starting in 2008. The alleged conduct includes, in detail, oral comments as well as physical gestures that were inappropriate if not illegal.

However the allegations of the federal criminal indictment add another more sinister layer to allegations Dr. Warbritton will be defending. Federal authorities allege that "On or about March 27, 2016, in the Northern District of California, the defendant, JOHN DAVID WARBRITTON, III, knowingly transported any child pornography, as defined in Title 18, United States Code, Section 2256(8), using any means and facility of interstate and foreign commerce and in or affecting interstate and foreign commerce by any means, including by computer, in violation of 18 U.S.C. § 2252A(a)(l) 24 and (b)." ...
Read More
/ 2016 News, Daily News
A former sales representative for AFLAC has been found guilty of federal fraud charges stemming from a scheme that bilked the insurance company out of $4 million with fake disability claims.

Patricia Diane Smith Sledge, 60, of Redlands, was convicted in the scheme involving fictitious employers and "employees" who falsely claimed to have suffered injuries that prevented them from working.

At the conclusion of a two-week trial, the jury convicted Sledge of six counts of mail fraud. The jury also found that Sledge committed two counts of witness tampering while on bond in this case.

United States District Judge James V. Selna, who presided over the trial, ordered Sledge to return to court for a sentencing hearing on March 20, 2017, at which time the defendant will face a statutory maximum sentence of 160 years in federal prison.

The evidence presented at trial showed that Sledge, who was residing in Irvine while working for the company formally known as American Family Life Assurance Company, sold disability insurance policies to bogus companies and people who supposedly worked for those companies. Sledge then orchestrated the filing of fraudulent disability claims and directed the purported employees to doctors that would sign off on the fake injury claims.

As a result of the false claims, AFLAC suffered losses of approximately $4 million.

Sledge made money both from the commissions related to the sale of the fraudulent insurance policies and from kickbacks she received from the supposedly injured "employees."

"Using knowledge she gained as a company insider, this defendant was able to game the system, causing her employer to suffer millions of dollars in losses," said United States Attorney Eileen M. Decker. "While her scheme went unnoticed for a period of time, her employer was able to uncover the conduct and referred the matter to federal authorities. This cooperation from the victim and a thorough investigation by law enforcement has resulted in this successful prosecution."

Sledge was also found guilty of witness tampering for encouraging potential witnesses to lie to federal investigators and discouraging them from cooperating in the investigation. Both counts related to conduct after Sledge became aware of the federal investigation, and one count stemmed from conduct after she was indicted in this case and freed on bond in 2012.

"Defendant Sledge illegally misused the authority granted to her as a licensed insurance agent in California for her own personal gain, at the expense of her trusted employer," said Deirdre Fike, the Assistant Director in Charge of the FBI's Los Angeles Field Office. "In addition, the defendant's brazen attempt of witness tampering to tilt the justice system in her favor further demonstrates her lack of respect for the rule of law. The lengthy prison sentence the defendant faces should serve as a warning to anyone contemplating insurance fraud."

Two others have been prosecuted for acting as fake employers and fake employees in this scheme.
Read More
/ 2016 News, Daily News