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Businesses located in Washington, D.C., Nevada, Delaware, New Mexico and California face the highest risk of being sued by their employees when compared to the national average, according to a new study released by global insurer Hiscox. The study revealed that US-based companies have just over a 10 percent chance of having an employment charge filed against them.

The 2017 Hiscox Guide to Employee Lawsuits identifies the total impact of employee administrative charges and litigation, and exposes the markets where employee lawsuits are most prevalent. The report was compiled using the latest data on employment charge activity from the Equal Employment Opportunity Commission (EEOC) and its state counterparts across the US.

"Recent public accusations of discrimination and harassment are a stark reminder of the importance of creating an army of vigilant employees who can recognize the warning signs of unlawful behavior," said Patrick Mitchell, Management Liability Product head at Hiscox USA. "It’s also critical to be acutely aware of your state’s laws. We found that many of the higher-risk states have laws in place that go beyond federal legislation. Varying state laws can impact the risk business owners face and play a role in the number of employee lawsuits in a given state. Business owners must stay aware as legislation evolves, and ensure that their businesses are compliant and that they have a plan in place should a lawsuit be filed."

According to the study, businesses based in Washington, D.C., face the greatest risk of being sued by their employees, 81 percent higher than the national average. Other states where employers are at a high risk of facing employee charges when compared to the national average include Delaware and Nevada (+55%, respectively), New Mexico (+50%), California (+46%), Mississippi (+43%), Alabama (+39%), Illinois (+35%), and Connecticut and Georgia (+19%, respectively).

Claims against an employer can occur when an employee or job applicant feels they have been discriminated against in the workplace for reasons including, but not limited to, their age, disability, religion, race or color. Unlawful retaliation against job applicants or employees, who had alleged that they had been punished for asserting their rights to be free from employment discrimination, is the most common claim asserted in federal employment cases.

State laws can also have a significant impact on the risks businesses face from employee lawsuits and are drivers of increased employee charge activity. According to the study, this is because some state laws are more stringent than federal statutes. The following states, according to the report, allow employees the ability to go to court with filing a federal or state charge. These include: Alaska, Washington, D.C., Kentucky, Louisiana, Michigan, Maine, Nebraska, New Jersey, New York, Ohio, Oklahoma, Oregon, Vermont and Washington.

Discrimination can be perpetrated by management, another employee, or even someone outside the organization. Collectively, Hiscox claims data for small and mid-sized enterprises (under 500 employees) indicates that one in 10 businesses will face an employee charge. On average, it will take these businesses 318 days to resolve a claim. Without employment practices liability insurance, each of these companies would face an average $160,000 payment for defense and settlement charges. This payment can potentially be avoided by preventing the behavior that could cause a lawsuit through training or routine enforcement of employment policies, detecting discriminatory behavior even if it’s not reported, and mitigating the impact on your business in the event of a charge ...
/ 2017 News, Daily News
A new medical study published on November 27 in the JAMA Internal Medicine says that patients may become less satisfied with their care when doctors refuse their requests for things like prescriptions or lab tests.

Researchers examined data on 1,141 patients with a total of 1,319 doctor visits. Overall, about two-thirds of these visits included at least one patient request for the doctor to provide a particular specialist referral, lab test, pain drug or other prescription medication.

Doctors fulfilled these requests 85% of the time, the study found. When doctors didn’t acquiesce, however, patient satisfaction scores in surveys after the visits were dramatically lower than when requests were fulfilled. "This was a stronger effect than we expected, particularly given we had adjusted for all kinds of other things that could influence satisfaction," said lead study author Dr. Anthony Jerant of the University of California Davis School of Medicine.

Part of the problem may be how often doctors are saying "yes" to patient requests, Jerant said by email. "This is strongly the norm in the patient’s mind - they ask for something, and a very strong majority of the time they get it," Jerant said. "A request denial, therefore, is quite out of the ordinary and probably likely to invoke a negative reaction."

Patients in the study were 46 years old, on average, and saw one of 56 family physicians for outpatient visits at an academic medical center in Northern California. The most common requests were for lab tests, followed by specialist referrals, pain medication or other prescription drugs, radiology tests, other lab work and antibiotics.

Satisfaction scores ranged from -30 (lowest) to +30 (highest), with zero representing an average, or neutral, level of satisfaction. Satisfaction was lowest for denials of requests involving referrals to another clinician (-20), non-pain prescription drugs (-20), pain medications (-11) and lab tests (-9). There wasn’t a meaningful difference in patient satisfaction based on whether or not doctors fulfilled requests for antibiotics, radiology or other tests.

The results suggest that doctors may need to do a better job in some cases of explaining their rationale for refusing a patient’s request.

The results underscore the fact that doctors often agree with patients about what referrals, prescriptions or tests might be best, said Dr. Joseph Ross, author of an accompanying editorial and a public health researcher Yale University in New Haven, Connecticut. When doctors disagree with patients’ requests, the study results suggest that it matters how doctors explain their decision, Ross said by email.

The reasons for patients’ requests matter, too. Sometimes patients have seen a treatment advertised on television, or heard about it from a friend or family member. Other times, patients aren’t happy with their care and think a specialist may be needed.

"I think physicians are often wary of denying care that has been requested by patients, both because it will impact satisfaction and because it takes longer to explain to a patient why a service is not needed than to simply agree and process the order," Ross added. "To me, the key is that physicians and patients communicate clearly so that the care decisions are being shared and are in the best interest of patients." ...
/ 2017 News, Daily News
Workers’ Compensation Medicare Set-Aside (WCMSA) plans are required to set up reserves to cover Medicare beneficiaries’ future medical care for injured workers who are or will soon be Medicare eligible.

And now a new California Workers’ Compensation Institute (CWCI) study examines data from 7,926 California WCMSA plans completed, submitted and approved by the Centers for Medicare and Medicaid Services (CMS) in 2015 and 2016

The study reports that nearly 70% of federally mandated and approved Medicare settlements for injured workers require funding for decades of opioid use, often at dangerously high levels and in conjunction with other high-risk drugs. Such a requirement exceeds federal and state clinical guidelines and places patients at high levels of risk.

This of course raises the question - why are employers paying in advance for the costs of opiate medications that are inappropriate by today's standards? And more importantly, how can employers contest a CMS demand for such opiate funding?

Authors Alex Swedlow and Dr. David Deitz found that on average, insurers allocated $103,393 at the time of the injured workers’ settlements to cover the future medical expenses associated with their work injuries, with $48,986 (47%) of that amount set aside to pay for prescription drugs.

Opioids were the number one type of drug included in WCMSAs, found in 69.4% of the approved plans, and overall, opioids accounted for 27.7% of all WCMSA prescriptions - more than twice the proportion of any other drug category. In terms of costs, the study found that with an average allocation of $33,113, opioids accounted for almost 1/3 of the total dollars reserved for prescription drugs.

The opioid combination drug Hydrocodone-Acetaminophen (generally known as Vicodin® or Norco®) was the most common opioid found in the WCMSAs (44% of the opioid prescriptions in the plans, 20.7% of the dollars allocated for opioids), followed by Tramadol HCI and Oxycodone HCI, though even more powerful Fentanyl, linked to more than 20,000 deaths in 2016, accounted for 2.2% of the opioids and 6.6% of the total amount allocated for opioids in the approved plans.

Comparing opioids found in WCMSAs to a case-matched control group of closed workers’ comp permanent disability claims for similar injuries, the authors found that the WCMSAs called for much stronger opioids, as average cumulative morphine milligram equivalents (MMEs) allocated to WCMSAs with opioids were 45 times the level used in the control group during the life of the claim.

Likewise, approved WCMSAs with opioids required funding for an average daily dose of 54.7 morphine equivalents (MEDs) for a period of 20.9 years, while 1 in 10 had allocations for a daily dose of 90 MEDs, a marker for elevated risk to the patient. In addition to requiring funds for long-term opioid use, many of the WCMSA plans also included reserves for simultaneous, long-term use of other potentially risky medications.

For example, 14.5% of the WCMSAs with opioids also had reserves for sedative-hypnotics, and nearly 5% had allocations for sedative-hypnotics, muscle relaxants, and opioids ...
/ 2017 News, Daily News
Four San Diego-area nursing homes owned by Los Angeles-based Brius Management Co. have agreed to pay as much as $6.9 million to resolve civil allegations that their employees paid kickbacks for patient referrals and submitted fraudulent bills to government health care programs.

The settlement with the four nursing homes resolves an investigation into allegations that their employees paid kickbacks to discharge planners at Scripps Mercy Hospital San Diego to induce patient referrals to the nursing homes in violation of the federal Anti-Kickback Statute.

The investigation examined additional allegations made in a "whistleblower" lawsuit that the nursing homes submitted false claims to Medicare and Medi-Cal for services provided to patients referred from Scripps Mercy Hospital. Bills submitted for patients referred as a result of illegal kickbacks would constitute fraud against the United States and the State of California.

The four nursing homes involved in the settlement are: Point Loma Convalescent Hospital, Brighton Place - San Diego, Brighton Place - Spring Valley, and Amaya Springs Health Care Center in Spring Valley.

These same four nursing homes entered into Deferred Prosecution Agreements (DPAs) with the United States Attorney’s Office in San Diego in 2016. In the DPAs, the four entities admitted that nursing home employees conspired to pay kickbacks without the knowledge of Brius Management Co. The nursing homes admitted that their employees used corporate credit cards to pay for gift cards, massages, tickets to sporting events, and a cruise on the Inspiration Hornblower that were given to planners at Scripps Mercy Hospital as kickbacks.

The settlement calls for guaranteed payments of $1,785,967 to the United States, to be paid in three annual installments, and a $240,950 lump sum payment to the State of California. The nursing homes paid the first installment to the United States on November 6, and California received its payment on November 10.

The hospitals also agreed to pay up to $4.9 million to the United States if certain operational contingencies are met, making the total settlement worth up to $6,926,917.

The four nursing homes have also entered into Corporate Integrity Agreements with the Department of Health and Human Services.

The settlement resolves a lawsuit brought by a former employee of one of the nursing homes under the qui tam - or whistleblower - provisions of the federal and state False Claims Acts, which allow private citizens to file lawsuits on behalf of the United States and California and share in any recovery. The whistleblower, Viki Bell-Manako, will receive 20 percent of each settlement payment. Pursuant to the settlement, United States District Judge John F. Walter today dismissed the lawsuit, United States of America, State of California ex rel. Bell-Manako v. Brius Management Co., et al., CV11-2036-JFW.

The settlement with the four nursing homes was negotiated by the Civil Fraud Section of the United States Attorney’s Office following an investigation by the Department of Health and Human Services, Office of Inspector General, and the Federal Bureau of Investigation ...
/ 2017 News, Daily News
The Division of Workers’ Compensation has suspended nine more medical providers from participating in California’s workers’ compensation system, bringing the total number of providers suspended this year to 94. The providers were suspended for fraud or other criminal actions.

DWC Administrative Director George Parisotto issued suspension orders against the following providers:

- Sathish Narayanappa Babu of Bolingbrook, Illinois, physician, was convicted on federal charges of Medicare fraud and of fraudulently obtaining controlled substances in February 2015. The Medical Board of California has revoked his medical license.

- Uche Chukwudi of Gardena, physician, was indicted in 2013 in federal court on felony conspiracy and health care fraud charges for defrauding Medicare in a scheme involving durable medical equipment (DME) provider Adeline Ekwebelem, Uche Chukwudi, Charles Okoye and others. He failed to appear at pre-trial proceedings and was declared a fugitive. The Medical Board of California revoked his license in 2017.

- Charles Ikechukwu Okoye of Carson, physician, was convicted in federal court for conspiracy to commit health care fraud for defrauding Medicare in a scheme involving DME provider Adeline Ekwebelem, Uche Chukwudi and others in 2014. Okoye surrendered his physician’s and surgeon’s certificate in 2015.

- Adeline Ekwebelem of Gardena, DME provider who worked with Uche Chukwudi, Charles Okoye and others, was convicted in federal court on multiple counts of health care fraud, conspiracy and illegal kickbacks for patient referrals in 2014.

- Victoria Kim of Los Angeles, physician, pled guilty in federal court on a felony charge of receiving illegal kickbacks for home health care referrals. The Medical Board of California revoked her medical license in 2016.

- Daria Renee Million of Corona, registered nurse, pled guilty in Riverside County in May 2015 to DUI and in December 2015 to misdemeanor child endangerment. The California Board of Registered Nursing revoked her license in 2016.

The following providers participated in an illegal kickback scheme to issue medically-unnecessary DME prescriptions to Medicare patients:

- Victoria Onyeabor of Ontario, DME provider and former owner of Fendih Medical Supplies Inc., was convicted in federal court for conspiracy to commit health care fraud in 2012 for submitting false and fraudulent claims to Medicare.

- Godwin Onyeabor of Ontario, DME provider and corporate officer of Fendih Medical Supplies Inc., was convicted in federal court in 2013 for conspiracy to commit health care fraud, health care fraud, and conspiracy to pay and receive health care kickbacks.

- Sri Jayantha Wijegunaratne of Anaheim Hills, physician, was convicted in federal court in 2013 for conspiracy to commit health care fraud, health care fraud, and conspiracy to pay and receive health care kickbacks. His medical license was revoked in 2016.

AB 1244, which went into effect January 1, requires DWC’s Administrative Director to suspend any medical provider, physician or practitioner from participating in the workers’ compensation system in cases such as these ...
/ 2017 News, Daily News
Reuters reports that a unit of AmerisourceBergen Corp, one of the largest U.S. drug wholesalers, has agreed to pay $625 million to resolve a U.S. government probe involving pre-filled syringes, the company said in a filing with U.S. securities regulators on Tuesday.

The agreement, whose final terms are still being negotiated and which must be approved by a court, comes on top of a $260 million criminal penalty that the subsidiary, AmerisourceBergen Specialty Group, agreed to pay in September as part of a criminal guilty plea.

The company previously disclosed a $575 million reserve for a possible civil settlement in the case.

Keri Mattox, a spokeswoman for AmerisourceBergen, declined to comment beyond Tuesday’s public filing with the U.S. Securities and Exchange Commission.

The federal probe involved the pre-filled syringe program of AmerisourceBergen Specialty Group’s now-defunct Medical Initiatives Inc subsidiary, as well as certain oncology products, according to the company’s filing.

In a court document filed in September, AmerisourceBergen admitted that Medical Initiatives packaged syringes of cancer drugs at an Alabama facility that was not registered with the U.S. Food and Drug Administration, as required by federal law, pleading guilty to a misdemeanor charge.

The company also admitted in the September filing that Medical Initiatives illegally dispensed syringes based on order forms that were not prescriptions signed by medical practitioners. It added that it submitted syringes on behalf of single patients in excess of safe doses.

AmerisourceBergen said the violations occurred from 2005 until 2014.

In a criminal information unsealed in September, U.S. prosecutors also charged that Medical Initiatives prepared syringes by pooling drugs sold in glass vials that were meant for a single use, and did not maintain a sterile environment in its facility, resulting in contamination in some syringes.

AmerisourceBergen did not plead guilty to those charges or admit any wrongdoing related to them ...
/ 2017 News, Daily News
Jaime Rosario Del Real, 61, and son Israel Del Real, 37,both pleaded guilty to four felony counts for their role in a $400,000 insurance fraud scheme denying workers' compensation insurance and medical care for injured workers.

The father and son duo were sentenced to 250 days in jail, 10 years felony probation, and ordered to pay $382,951 in restitution. This case was prosecuted by the Monterey County District Attorney's Office.

Doing business as Del Real Produce and Packing and Del Real Packing, LLC, the Del Reals worked as farm labor contractors providing laborers for picking and packing lettuce for growers in Monterey County and Yuma Arizona. After receiving information from an insurer, Department of Insurance detectives found the Del Reals had concealed injuries their workers sustained and refused to pay for medical treatment or provide other benefits the injured workers were entitled to.

The investigation also revealed that over a five year period, the Del Reals lied more than 20 times in order to obtain reduced insurance premiums. As part of their premium theft the Del Reals kept two sets of Employment Development Division (EDD) forms, with different employees and a different number of employees listed, which allowed the Del Reals to evade paying payroll taxes.

"Business owners are responsible for the safety and care of their employees," said Insurance Commissioner Dave Jones. "Employers who fail to carry workers' compensation insurance or pay for the medical care for injured workers violate the law and put their employees at risk. Our detectives and the Monterey County District Attorney's team succeeded in taking another dishonest employer out of the underground marketplace."

/ 2017 News, Daily News
A judge on Monday rejected a plea deal that was part of Aegerion Pharmaceuticals Inc’s recent agreement to pay $40.1 million to resolve U.S. probes of its marketing of a cholesterol drug, saying it was "not in the public interest."

Reuters reports that U.S. District Judge William Young in Boston ruled the U.S. Justice Department’s deal with the Novelion Therapeutics Inc unit "unduly hobbles" his duties as a judge by restricting his ability to impose a sentence.

Young said the agreement showed "the shocking disparity between the treatment of corporations and individuals in our criminal justice system."

While people who plead guilty face judges with discretion on sentencing, corporations like Aegerion can obtain deals that restrict what punishment the judge can impose, giving them the "most effective damage control," Young wrote.

He commended Aegerion’s new management for cooperating in the probe. But Young criticized the plea deal’s lack of any payment to victims and said the agreement failed to justify fully why its financial terms were acceptable.

“What is left unexplained is why the government does not simply let Aegerion collapse in disgrace,” Young wrote. “Surely Aegerion is not too big to fail.”

The judge, who at least twice before rejected similar corporate plea deals, ordered the case ready for trial.

A spokeswoman for Cambridge, Massachusetts-based Aegerion had no immediate comment. Representatives for Acting U.S. Attorney William Weinreb, whose office was pursuing the case, did not immediately respond to requests for comment.

The plea deal came as part of a set of settlements with the Justice Department and the U.S. Securities and Exchange Commission announced on Sept. 22 aimed at resolving a long-running probe centered on its Juxtapid cholesterol drug.

Prosecutors said that after the U.S. Food and Drug Administration in 2012 approved Juxtapid for treating high cholesterol in people with a rare genetic disease, Aegerion promoted it for patients who did not have the condition.

As part of a deal with the Justice Department, Aegerion agreed to plead guilty to two misdemeanor drug misbranding violations of the Food, Drug and Cosmetic Act and pay $36 million to resolve criminal and civil claims.

Aegerion, which in 2016 merged with QLT Inc and became a subsidiary of the newly named Novelion, also entered a deferred prosecution agreement to resolve a charge that it conspired to violate the Health Insurance Portability and Accountability Act.

The case is U.S. v. Aegerion Pharmaceuticals Inc, U.S. District Court, District of Massachusetts, No. 17-cr-10288 ...
/ 2017 News, Daily News
Daniel Rush was sentenced to 37 months in prison for breaching his fiduciary duties to the United Food and Commercial Workers Union (UFCW) and participating in a money laundering scheme. The sentence was handed down by the Honorable Haywood S. Gilliam, Jr., U.S. District Judge, following Rush’s guilty pleas on June 22, 2017.

Rush pleaded guilty to one count of receiving an illegal payment as a union employee, in violation of 29 U.S.C. § 186(b)(1); one count of honest services wire fraud, in violation of 18 U.S.C. §§ 1343, 1346; and one count of conspiracy to commit structuring and money laundering, in violation of 18 U.S.C. § 371.

According to his plea agreement, between 2010 and 2015, Rush engaged in a series of schemes to enrich himself in violation of federal law and his fiduciary duties:

In 2010, he conspired with attorney Marc L. TerBeek and others to structure approximately $420,000 in illegal drug proceeds into the banking system. Although the money was a loan from someone in the cannabis industry, Rush deliberately mischaracterized monthly interest payments as consulting fees.

While serving as the Organizing Coordinator for the unofficial cannabis division at UFCW, Rush gave an employer a corrupted neutrality agreement in exchange for personal loan forgiveness. He also accepted kickbacks from TerBeek in exchange for referring cannabis businesses he encountered in his union role to TerBeek’s law practice.

Rush abused his position as Executive Treasurer and Board Member at the Instituto de la Raza Laboral (Instituto) in similar fashion by demanding and accepting remuneration from TerBeek in exchange for establishing TerBeek as an approved legal provider for workers’ compensation cases at the Insituto.

Finally, Rush engaged in corrupt conduct as a Commissioner on the Berkeley Medical Cannabis Commission when he attempted to extort a business that had applied for a dispensary permit. Using TerBeek as an intermediary, Rush communicated that if the applicant did not offer him a salaried job, with benefits, he would take adverse action against its application.

In addition to the prison term, the Court also sentenced the Rush to a three-year term of supervised release and ordered him to pay a fine of $7500.

Rush’s coconspirator, East Bay attorney Marc L. TerBeek pleaded guilty on February 16, 2017, to one count of making an illegal payment to a union employee, in violation of 29 U.S.C. § 186(a) and one count of willfully violating an anti-structuring regulation, in violation of 12 U.S.C. § 1956. Judge Gilliam scheduled TerBeek’s sentencing hearing for November 27, 2017.

Last August, the California State Bar issued the following Order regarding attorney Marc TerBeek. "Since respondent Marc Lawrence Terbeek, State Bar Number 166098, has been convicted of violating title 29 United States Code section 186(a) (making payment to an employee of union organization), a felony which may or may not involve moral turpitude, and title 12 United States Code section 1956 (willful Violation of anti-structuring regulation), a misdemeanor which may or may not involve moral turpitude, it is ordered pursuant to Business and Professions Code section 6102 that respondent be suspended from the practice of law effective September 5, 2017, pending final disposition of this proceeding."

The prosecution is the result of an investigation by the FBI and the Internal Revenue Service-Criminal Investigation Division ...
/ 2017 News, Daily News
Add diagnosing dangerous lung diseases to the growing list of things artificial intelligence can do better than humans. A new arXiv paper by researchers from Stanford explains how CheXNet, the convolutional neural network they developed, achieved the feat.

CheXNet was trained on a publicly available data set of more than 100,000 chest x-rays that were annotated with information on 14 different diseases that turn up in the images.

The researchers had four radiologists go through a test set of x-rays and make diagnoses, which were compared with diagnoses performed by CheXNet.

Not only did CheXNet beat radiologists at spotting pneumonia, but once the algorithm was expanded, it proved better at identifying the other 13 diseases as well.

Early detection of pneumonia could help prevent some of the 50,000 deaths the disease causes in the U.S. each year. Pneumonia is also the single largest infectious cause of death for children worldwide, killing almost a million children under the age of five in 2015.

Andrew Ng, a coauthor of the paper and the former head of AI research at Baidu, thinks AI is going to be relied upon in medicine more and more. He previously worked on an algorithm that can, after being trained on electrocardiogram (ECG) data, identify heart arrhythmias better than a human expert.

Another deep-learning algorithm recently published in Nature was able to spot cancerous skin lesions just as well as a board-certified dermatologist.

Radiologists in particular have been on notice for a while. Previous research has shown that AI is as good as or better than doctors at spotting problems in CT scans.

Geoffrey Hinton, one of the pioneers of deep learning, told the New Yorker that because of the advances in AI, medical schools "should stop training radiologists now." Analyzing image-based data sets like x-rays, CT scans, and medical photos is what deep-learning algorithms excel at. And they could very well save lives ...
/ 2017 News, Daily News
In August 2012, Denise Michelle Duncan was acting within the course and scope of her employment with Acosta Inc. when she fell and injured herself on a Wal-Mart Stores, Inc. premises.

Hartford Accident & Indemnity Company was Acosta’s workers’ compensation insurer and paid Duncan more than $152,000 in benefits, including more than $115,000 in medical expenses and roughly $37,000 in temporary disability indemnity for Duncan’s lost wages.

Duncan sued Wal-Mart Stores, Inc. for personal injuries. The trial court entered judgment finding Wal-Mart liable for Duncan’s injuries.

Under Labor Code sections 3852 and 3856, appellant Hartford Accident & Indemnity Company applied for a lien on Duncan’s judgment to obtain reimbursement for the workers’ compensation benefits it paid Duncan, including medical expenses and temporary disability payments for lost wages.

Since the judgment she received did not include compensation for Duncan’s lost wages (because she did not seek those damages at trial), the trial court granted Hartford a lien on Duncan’s judgment, but reduced the lien amount to exclude the indemnity payments for lost wages.

Hartford appealed the trial court’s postjudgment order, arguing the court exceeded its authority by reducing the lien amount for any item other than reasonable attorney fees and costs. The court of appeal agreed in the unpublished case of Duncan v. Wal-Mart Stores.

The Labor Code permits an employer to recover workers’ compensation benefits it has become obligated to pay in three ways: (1) bringing an action directly against the tortfeasor (§ 3852), (2) joining as a party plaintiff or intervening in an action brought by the employee (§ 3853), or (3) allowing the employee to prosecute the action and then applying for a first lien against the resulting judgment or settlement. (§ 3856(b).)

"All benefits required to be paid by the employer, even though . . . in excess of those ordinarily enjoined by the Workmen’s Compensation Act, are deemed the ‘compensation’ and ‘special damages’ of section 3856[(b)] and are subject to the employer’s lien. Thus, continued salary paid the workman during disability as required by ordinance [citations], or municipal charter [citation], or statute [citations], is subject to the employer’s lien. Such salary, for which the employee renders no services, is deemed to be ‘compensation’ for which, under sections 3852 and 3856[(b)] the employer is given the right of reimbursement.” (Harvey v. Boysen (1975) 50 Cal.App.3d 756, 761 (Harvey).)"

The Labor Codes plain language and the case law applying it grant Hartford a first lien on the judgment in the amount it paid Duncan for worker’s compensation benefits. Duncan’s choice not to seek lost wages at trial does not diminish Hartford’s lien rights under the workers’ compensation statutory scheme.
/ 2017 News, Daily News
The Francis Stevens case is headed back to the Court of Appeal, after the WCAB ruled that a portion of the medical treatment guideline relied upon by the IMR process was "unlawful" and that the WCAB now has wide discretion to be involved in the IMR process.

In 2015 the Court of Appeal upheld the constitutionality of the IMR process in one of the most closely watched cases in California workers' compensation. The published case of Stevens v WCAB involved Frances Stevens who tripped and broke her foot as she carried boxes of magazines. She was diagnosed with chronic or complex regional pain syndrome and claims to be mostly confined to a wheelchair and was awarded total permanent disability.

For several years she had the assistance of a home health aide. In late 2012, the aide was injured. This led the PTP to submit an RFA to SCIF for a replacement aide which was submitted to UR and denied. The request was also denied after the IMR process. Stevens appealed the IMR decision, but the WCJ found there was no provision for a reversal since the labor code provides only limited circumstances upon which IMR can be reversed.

Stevens challenged constitutionality of the IMR process. In response the WCJ said "section 3.5 of article III of the Constitution withholds from administrative agencies the power to determine the constitutional validity of any statute." The WCAB denied reconsideration and agreed that it could not rule on the constitutional issue saying "In sum, for purposes of appeal to the WCAB it does not matter whether the reasons given for an IMR determination support the determination unless the appealing party proves one or more of five grounds for appeal listed by the Legislature in section 4610(h) by clear and convincing evidence. Applicant did not do that in this case.

The First District Court of appeal concluded "that her state constitutional challenges fail because the Legislature has plenary powers over the workers’ compensation system under article XIV, section 4 of the state Constitution (Section 4). And we conclude that her federal due process challenge fails because California’s scheme for evaluating workers’ treatment requests is fundamentally fair and affords workers sufficient opportunities to present evidence and be heard."

Although Stevens may have lost the battle, she may not have lost the war since she was given a second chance to prove her case on the merits. The Court of Appeal stated "we also conclude that the Workers’ Compensation Appeals Board (the Board) misunderstood its statutory authority in one respect when it reviewed Stevens’s appeal. The Board concluded that it was unable to review the portion of the IMR determination that found, "Medical treatment does not include . . . personal care given by home health aides . . . when this is the only care needed." Under the 2013 reforms, however, the Board is empowered to review an IMR decision to consider whether care was denied without authority because the care is authorized under the MTUS. (§ 4610.6, subd. (h)(1) & (5).) We therefore remand this matter to the Board to consider whether Stevens’s request for a home health aide was denied without authority."

And indeed the WCAB recently ruled in its Opinion and Decision After Remittitur "that the 2009 Guideline is unlawful and invalid since it fails to address the medical treatment in the form of personal home care services sought by Ms. Stevens."

In arriving at this conclusion the WCAB interpreted the language of the Court of Appeal in the published decision as authorizing the WCAB to have "considerable" authority over IMR. "Thus, the Court held that the Appeals Board has considerable authority to review both factual and legal questions in its determination of whether an IMR determination was adopted without authority or based on a plainly erroneous fact not subject to expert opinions. We conclude that the 2009 Guideline is contrary to California law and the IMR determination that relied on it was therefore adopted without authority."

The State Fund responded by filing a petition for writ of review with the Court of Appeal in August. By September a number of stakeholders were involved as amicus parties. And on October 25 the Court of Appeal issued a writ of review, which means that the entire dispute will now be heard, again, in that tribunal. However the outcome is many months, if not years away ...
/ 2017 News, Daily News
The Division of Workers’ Compensation (DWC) has suspended 12 more medical providers from participating in California’s workers’ compensation system, bringing the total number of providers suspended this year to 85. Nine providers were suspended for fraud or criminal actions and three for administrative reasons.

DWC Administrative Director George Parisotto issued suspension orders against the following providers:

- Paul Richard Randall of Orange, health care marketer and owner of Summit Medical Group, pled guilty in federal court on April 16, 2012 for his role in a spinal surgery kickback scheme. The scheme involved recruiting chiropractors and doctors to refer patients in exchange for illegal kickbacks involving nearly $600 million in fraudulent claims.

- Harold "Harry" Persaud, Westlake, Ohio physician, was found guilty on October 2, 2015 in federal court for health care fraud and money laundering. The charges stem from Persaud’s practice of performing unnecessary catheterizations, tests, and stent insertions and causing unnecessary coronary artery bypass surgeries as part of a scheme to overbill Medicare and private insurers approximately $7.2 million. Persaud was sentenced to 20 years in federal prison. His certificate was also revoked by the Medical Board of California on September 1.

- Jeremy Goodwin, Mt. Shasta physician, had his license revoked on September 8 following violation of the terms of his 2014 probation from a prior disciplinary action by the Medical Board of California. Goodwin was charged with gross negligence for his treatment of a patient who died one day after receiving an excessive dosage of the opiate drug fentanyl.

- Christopher Dean Owens, San Francisco physician, had his license revoked on July 21 on findings that include self-administering illicit drugs.

- Guven Uzun, Marina Del Rey physician, had his certificate revoked by the Medical Board of California on July 19 after violating the terms of his 2011 probation due to charges of negligence and falsifying medical records

- Farhad Hafezi, Covina physician, was found guilty of felony charges of sexual assault involving a minor. He is a registered sex offender. His medical license was revoked by the Medical Board of California in 2014.

- Troy Ericsen Palmer, Chino physician, surrendered his license to the Osteopathic Medical Board of California on April 4 after pleading guilty to possessing child pornography.

- Keith Robert Deorio, Santa Monica physician, had his license revoked by the Medical Board of California on July 21 after repeated violations of the Medical Practice Act.

- Christopher Allen Scott, Palm Springs vocational nurse, had his license revoked by the California Board of Vocational Nursing and Psychiatric Technicians in January following findings that include the alleged use of controlled substances.

- John Thomas Moranville, Lafayette physician, had his license revoked by the Medical Board of California on August 18 following an evaluation finding that he suffers from an illness that impairs his ability to practice medicine safely.

- Joseph Struzzo, Cathedral City physician, had his certificate revoked by the Medical Board of California on August 4 following an evaluation finding that he suffers from an illness that impairs his ability to practice medicine safely.

- Adly Ayad Azab, West Covina physician, had his license revoked by the Medical Board of California on August 23 following an evaluation finding that he suffers from an illness that impairs his ability to practice medicine safely.

AB 1244 (Gray and Daly), which went into effect January 1, introduced new changes to the workers’ compensation system and requires the division’s Administrative Director to suspend any medical provider, physician or practitioner from participating in the workers’ compensation system in cases such as noted above.

/ 2017 News, Daily News
All to often a claims administrator may encounter a new PTP who has happened upon an injured worker for treatment, despite the fact that they may not know much if anything about workers' compensation concepts, rating, or reporting. This imposes a burden upon the administrator to hand hold the PTP every step of the way, a tedious, and time consuming task.

Now there are online resources that can get the job of teaching the PTP claim fundamentals to help with the task of bringing a new PTP up to speed.

The Division of Workers’ Compensation launched its second free online physician education course. This course is highly recommended for California’s Qualified Medical Evaluators (QMEs). It is also available to the public and may be useful for attorneys, claims administrators and medical providers participating in the California workers’ compensation system.

"Evaluating California’s Injured Workers: Qualified Medical Evaluators (QME)" is the second in a planned series of educational modules developed for medical doctors, chiropractors and nurses. QMEs play a critical role in resolving disputes within the workers’ compensation system.

The online education will cover:

- How to prepare for an evaluation and outline the components of a quality report
- How to properly identify and apply the complexity factors in the medical-legal fee schedule to ensure accurate billing
- Administrative regulations to stay in compliance as a QME ...
/ 2017 News, Daily News
Anthony White worked as a custodian for Los Angeles World Airports, a department of the City of Los Angeles. In November 2005, while off duty, he sustained several gunshot wounds to his left leg. He was briefly hospitalized and took several medical leaves of absence to recover from his injury. He returned to work in May 2006 and was assigned to perform light duty tasks in a warehouse.

At the end of August 2006, White took another medical leave of absence which lasted for approximately two years. According to one of White’s physicians, White was suffering from "Post Traumatic Stress Disorder and Intractable Pain secondary to gunshot wound in 2005."

In May 2008, during his leave, White was arrested in Arizona and was apparently charged with nine felony counts relating to identity theft and fraud. When White returned to work in 2008, his prior position (day shift custodial supervisor) was not available and the airport placed him in an available position at the same level on the graveyard shift.

White did not like working the night shift and requested a transfer to the day shift as a reasonable accommodation for disabilities related to his 2005 injury. However, because White failed to provide the airport with any viable explanation why working the day shift rather than the night shift would impact his disability, the airport denied his reasonable accommodation request.

White resigned from his position in 2010 on the same day he began serving a sentence on two felony charges in Arizona. He subsequently filed the present lawsuit against the airport, the City, and others, in which he alleges a variety of disability related employment claims under the Fair Employment and Housing Act (FEHA).

The case was tried to a jury. The court granted the airport’s nonsuit motion on several claims; the jury found in favor of the airport on White’s remaining claims. The outcome was affirmed in the unpublished case of White v City of Los Angeles.

White’s primary contention on appeal is that the trial court erred in denying his motion for new trial. He argues the evidence does not support either the jury’s verdict or the court’s nonsuit.

The court of appeal held that the "evidence - when properly viewed in the light most favorable to the judgment - does not support White’s assertion that the airport refused to consider any accommodation absent a showing of a "permanent restriction." During the discussions with White about his request for an accommodation, the airport focused mainly on whether White had any limitations due to his disability and, if so, how working during the day rather than at night might impact those limitations. Given that White said he could perform his job without any accommodation and the City’s medical office cleared White to return to work without any restrictions, the airport’s request for some additional information regarding his request for accommodation was not unreasonable." ...
/ 2017 News, Daily News
German drugmaker Bayer has hired the head of Nestle’s baby food business to help it reverse a drop in revenue from consumer health brands, which often fail to appeal to buyers on Amazon and other online platforms. Bayer has appointed Nestle’s Heiko Schipper, 48, to run the Consumer Health division as a group board member from March 1 next year, replacing Erica Mann.

Bayer was caught off guard by the speed of U.S. consumers switching to online stores at the expense of established drugstores. Major over-the-counter (OTC) drug rival GlaxoSmithKline has also struggled with the transition.

The shake-up in the segment is a harbinger of what could be in store for the much larger prescription drug sector when Amazon moves into that market and uses its purchasing power to squeeze prices, as is widely anticipated.

Moves such as drug distributor McKesson’s purchase of a CVS Health Corp unit that provides services to pharma firms as well as CVS Health’s planned push into next-day delivery are seen as pre-empting Amazon’s potential entry into prescription drug sales.

Bernstein analysts said in a note earlier this month they expect Amazon to "cause long-term margin compression through the drug supply chain".

In the market for non-prescription treatments, consumers are more easily comparing prices on the Internet, with Bayer’s premium brands such as sunscreen Coppertone or allergy remedy Claritin often falling by the wayside.

"The U.S. is the market that is facing tremendous structural changes," outgoing executive Erica Mann said in an analyst call discussing third-quarter results this month. "We also noted in the U.S. market significant channel shifts, such as an acceleration towards e-commerce and, in particular, I can call it the Amazon effect... Consumer behaviors are shifting and they’re really moving towards e-commerce channels as well as searching for value."

Both Pfizer and Germany’s Merck KGaA are making preparations to sell their respective OTC businesses.

Bayer’s OTC drugs unit, boosted by a $14 billion acquisition of brands from U.S. rival Merck & Co in 2014, reported a 7.4 percent fall in third-quarter sales, down 2.9 percent adjusted for currency fluctuations and portfolio changes.

U.S. drugstore chains have merged in response to the online threat, wielding increased purchasing power to squeeze procurement prices ...
/ 2017 News, Daily News
In medicine, compliance describes the degree to which a patient correctly follows medical advice. Most commonly, it refers to medication or drug compliance, but it can also apply to other situations such as medical device use, self care, self-directed exercises, or therapy sessions.

Poor compliance with drug regimens is a common problem in many disease areas, especially when patients suffer from chronic conditions. In particular, low rates of adherence to therapies for asthma, diabetes, and hypertension are thought to contribute substantially to the human and economic burden of those conditions. Estimates from the World Health Organization indicate that only about 50% of patients with chronic diseases living in developed countries follow treatment recommendations.

But new technology may help improve compliance statistics. The FDA has approved the first digital pill with an embedded sensor to track if patients are taking their medication properly, marking a significant step forward in the convergence of healthcare and technology.

The medicine is a version of Otsuka Pharmaceutical Co Ltd’s established drug Abilify for schizophrenia, bipolar disorder and depression, containing a tracking device developed by California based Proteus Digital Health.

The system offers doctors an objective way to measure if patients are swallowing their pills on schedule, opening up a new avenue for monitoring medicine compliance that could be applied in other therapeutic areas.

The system works by sending a message from the pill’s sensor to a wearable patch, which then transmits the information to a mobile application so that patients can track the ingestion of the medication on their smartphone. The underlying technology is Proteus Discover which is comprised of ingestible sensors, a small wearable sensor patch, an application on a mobile device and a provider portal.

About the size of a grain of salt, the sensor has no battery or antenna and is activated when it gets wet from stomach juices. That completes a circuit between coatings of copper and magnesium on either side, generating a tiny electric charge.

In the longer term, such digital pills could also be used to manage patients with other complicated medicine routines, such as those suffering from diabetes or heart conditions.

Proteus has been working on the pill tracking system for many years and the sensor used in Abilify MyCite was first cleared for use by the FDA in 2012.

The California company has attracted investments from several large healthcare companies, including Novartis AG, Medtronic Inc and St. Jude Medical Inc, as well as Otsuka ...
/ 2017 News, Daily News
Medical payments per workers’ compensation claim with more than seven days lost time in California have decreased steadily since the enactment of reform legislation in 2013, according to a recent study by the Workers Compensation Research Institute (WCRI).

The study, CompScope Medical Benchmarks for California, 18th Edition, examined medical payments, prices, and utilization in California and compared them with 17 other states over a period from 2010 through 2015.

"We continue to monitor the impact of California reform legislation on medical payments, prices, and utilization," said Ramona Tanabe, WCRI’s executive vice president and counsel, referring to Senate Bill (SB) 863, a comprehensive reform bill that affected many aspects of the California system since Jan. 1, 2013. "The decrease in medical payments per claim in California likely reflects the impact of SB 863 provisions."

The following are among the study’s other findings:

1) Prices paid for primary care services increased while prices for specialty care decreased following the transition to the resource-based relative value scale (RBRVS) based fee schedule beginning in 2014.

2) The average payment per claim for using ambulatory surgery center (ASC) facilities decreased after a decrease in fee schedule rates for ASCs.

3) Prescription payments per claim with prescriptions decreased after 2012, perhaps reflecting, in part, the impact of an independent medical review process implemented by SB 863.

3) The percentage of claims with hospital services decreased from 2010 to 2015, part of a general trend seen in many states. In California, hospital payments per claim remained fairly stable.

In all, medical payments per claim in California were close to the median of the 18 study states for post-reform 2013 claims with experience through 2016. Pre-reform, California had higher medical payments per claim among the study states.

WCRI studied medical payments, prices, and utilization in 18 states, including California, and looked at claim experience through 2016 on injuries that occurred mainly from 2010 to2015. WCRI’s CompScope Medical Benchmarks studies compare payments from state to state and across time ...
/ 2017 News, Daily News
In workers' compensation claims, it is not uncommon for claim administrators to encounter claimants who assert that they are profoundly disabled from the effects of what seems like a trivial injury. A minor hand injury can end up a multi-body part claim of disability basically from head to toe.

But not everyone succumbs to the effects of injury, even a catastrophic injury. The events of this Veteran's day weekend offered a good example.

Ask Rob Jones. He braved the cold weather on Veterans Day to complete his mission: running 31 marathons in 31 days. This challenge was after losing both his legs to an improvised explosive device in Afghanistan in 2010, Jones has shown endurance that few can rival and certainly would not be seen by many as "disabled."

"I’m pretty sore, but overall I am feeling pretty good," Jones told Stars and Stripes as the sun rose over the Lincoln Memorial. Jones’ final run was on the National Mall in Washington, where he ran 26.2 miles to support his fellow veterans and raise money for charity.

Jones was laid out on a couch before setting out for his final run shortly after 7 a.m., bandages being taken of his back after falling during a race in Atlanta. He sat up, his artificial legs off, and clearly thought about this last race while he spoke.

Jones began his quest Oct. 12 in London, then flew to the States to race in Philadelphia, New York and Boston. He has raced in nearly every major city since then, running the equivalent of a marathon each day.

There was an air of exhaustion and pain about him, but he seemed determined. "I’m feeling good. I’m excited about this last one. It is going to be painful," he said.

Or ask Brian Shul. He flew 212 combat missions in Vietnam and was shot down near the Cambodian border in an AT-28 Air Force jet near the end of the war. He was so badly burned that he was given next to no chance to live.

Barely surviving 2 months of intensive care, he was flown to the Institute of Surgical Research at Fort Sam Houston, Texas in 1974. During the following year, he underwent 15 major operations. During this time he was told by physicians that he’d never fly again and was lucky to be alive.

Months of physical therapy followed, enabling Shul to eventually pass a flight physical and return to active flight duty. Two days after being released from the hospital, Shul was back flying Air Force fighter jet aircraft. He flew the the A10, A7 and the F5. As a final assignment in his career, Shul volunteered for and was selected to fly the SR-71. This assignment required an astronaut type physical just to qualify, and Shul passed with no waivers.

Shul said after the rigorous physical "I did very well, passed the physical. The guy said, 'wow, you've got one of the highest scores we've ever seen.' I was very strong internally, even if I looked like hell on the outside." He became a member of a small, select group of men who had the privilege of flying the SR-71.

He ended up flying the SR-71 Blackbird for four years. The SR-71 was the world's fastest and highest-flying operational manned aircraft throughout its career. It broke an "absolute altitude record" of 85,069 feet. That same day it set an absolute speed record of 2,193.2 mph approximately Mach 3.3. It has flown from Los Angeles to Washington, D.C., at an average speed 2,144.8 miles per hour with an elapsed time of 64 minutes 20 seconds to cross the continent.

Shul’s comeback story from lying near dead in the jungle of Southeast Asia, to later flying the world’s fastest, highest flying jet, seems to suggest that the will to overcome "disability" is a major component to the healing process after what would otherwise be a catastrophic injury.

He spoke at the Lawrence Livermore National Laboratory last December, and this YouTube video of his return to the flight line is humorous, inspiring, and perhaps a way to see a much different outcome to having had a so called "catastrophic Injury."

Shul just refused to see himself as disabled, despite what dozens of doctors had to say about his prospects of recovery.

/ 2017 News, Daily News
Working with California based exoskeleton maker Ekso Bionics, Ford has been piloting the use of a non-powered exoskeleton called EksoVest in two of their manufacturing plants in the U.S. The exoskeleton is designed to reduce fatigue from high-frequency activities.

Designed to fit workers from five feet to six feet four inches tall, the EksoVest adds 5 to 15 pounds of adjustable lift assistance to each arm. This exoskeleton is also comfortable enough to wear while providing free arm movement thanks to its lightweight construction.

The device is suited for real-world environments like factories, construction sites and distribution centers. The non-powered vest offers protection and support against fatigue and injury by reducing the stress and strain of high-frequency, long-duration activities that can take a toll on the body over time.

"Collaboratively working with Ford enabled us to test and refine early prototypes of the EksoVest based on insights directly from their production line workers," Ekso Bionics co-founder and CTO Russ Angold said in a Ford press release. "The end result is a wearable tool that reduces the strain on a worker’s body, reducing the likelihood of injury, and helping them feel better at the end of the day - increasing both productivity and morale."

Exoskeletons are already being used to help paraplegics walk, and applications for these technologies are even being expanded to provide support and enhancement for soldiers.

EksoVest is the latest example of advanced technology Ford is using to reduce the physical toll on employees during the vehicle assembly process. Between 2005 and 2016, the most recent full year of data, the company saw an 83 percent decrease in the number of incidents that resulted in days away, work restrictions or job transfers - to an all-time low of 1.55 incidents per 100 full-time North American employees.

To date, Ford ergonomists have worked on more than 100 new vehicle launches globally using ergonomic technology tools, including most recently the 2018 Ford Mustang, 2018 Ford F-150, and the all-new 2018 Ford Expedition and 2018 Lincoln Navigator.

Through significant investments in the program, not only has Ford achieved a reduction in employee incident rates, it has seen a 90 percent decrease in such ergonomic issues as overextended movements, difficult hand clearance and tasks involving hard-to-install parts.

"We refer to our assembly line employees as ‘industrial athletes’, due to the physical nature of the job," said Allison Stephens, technical leader for assembly ergonomics at Ford. "We have made data-driven decisions through ergonomics testing that has led to safer vehicle production processes and resulted in greater protection for our employees."
/ 2017 News, Daily News