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The California Thoroughbred Business League (CTBL), responsible for overseeing funds utilized for providing workers’ compensation insurance relief to horsemen, has seen steadily increasing workers’ compensation rates in the state of California.

The cost of the 2019 program is expected to increase by 3% over 2018, or by more than $13.7 million for Thoroughbreds.

Per-start fees will be increased from $100 to $106 to cover the owners’ portion of funding. As before, the per-start fee will be automatically deducted from the owner’s paymaster account every time that owner starts a horse, effective Jan. 1.

The Thoroughbred Owners of California (TOC) board voted unanimously to increase Guaranteed Participation Purses by $6 per start to offset the costs.

In addition, starting Jan. 1, owners of horses who finish fifth or beyond - whenever their share of purse money is less than the Guaranteed Participation Purse - will be paid $300 per start at Golden Gate Fields and $351 per start at Southern California tracks to include increased costs for third party Lasix administration and jockey fees.

Three sources of revenue are utilized to cover workers’ compensation costs in California, according to Brad McKinzie of the Finish Line Self Insurance Group, which has managed workers’ compensation accounts for Thoroughbred horsemen in California since 2011.

Owners pay a fee per starter to cover jockeys, trainers pay a daily fee to cover exercise riders and stable staff, and one-half of 1 percent of the takeout on handle from exotic wagers on California races is dedicated to a fund to pay workers’ compensation costs.

Legislation passed in 2004 allowed for the increase in takeout to offset worker’s compensation costs.

The deduction from takeout amounts to approximately $6.5 million annually, McKinzie said. Owners and trainers pay the remaining costs. The fee paid by a trainer amounts to approximately $100 per month per horse in their stables.

The TOC is part of the California Thoroughbred Business League, a consortium of racetracks, horsemen’s groups, and fair organizations that oversees a program to provide workers’ compensation subsidies to owners. The Finish Line Group has handled workers’ compensation for Thoroughbred horsemen in California since 2011. McKinzie founded the Finish Line Group. He is also the general manager of the Los Alamitos Thoroughbred meetings ...
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/ 2018 News, Daily News
Patients who underwent physical therapy soon after being diagnosed with pain in the shoulder, neck, low back or knee were approximately 7 to 16 percent less likely to use opioids in the subsequent months, according to a new study by researchers at the Stanford University School of Medicine and the Duke University School of Medicine.

For patients with shoulder, back or knee pain who did use opioids, early physical therapy was associated with a 5 to 10 percent reduction in how much of the drug they used, the study found.

The study, from an analysis of private health insurance claims for care and prescriptions between 2007 and 2015, was published in JAMA Network Open. Eric Sun, MD, PhD, assistant professor of anesthesiology, perioperative and pain medicine at Stanford is the lead author. Steven George, PhD, professor of orthopaedic surgery at Duke, is the senior author.

The findings, Sun said, could be helpful to clinicians in search of pain-management options that carry fewer health risks than opioids. Studies have shown exercise therapy, a component of physical therapy, reduces pain and improves function for some musculoskeletal conditions. Other studies have shown that patients with past prescriptions for opioid pain medication are at increased risk for overdose and misuse.

"This isn't a world where there are magic bullets," Sun said. "But many guidelines suggest that physical therapy is an important component of pain management, and there is little downside to trying it."

The study also measured whether early physical therapy was associated with a decreased need for opioids in the long term among patient who filled prescriptions. The researchers measured the quantity of opioids by converting prescribed amounts to oral morphine milligram equivalents.

They found, after adjusting for confounding factors, that patients who had undergone early physical therapy used 10.3 percent less opioid medication for knee pain; 9.7 percent less for shoulder pain; and 5.1 percent less for back pain in the period three months to a year after their diagnosis. There was no significant reduction for neck pain.

Physical therapy within three months of diagnosis also was associated with a decreased likelihood that patients with two of the conditions would chronically use opioids in the long term, according to the study. After early physical therapy, patients with knee pain were 66 percent less likely in the period three months to a year after their diagnosis to either fill 10 or more prescriptions or acquire a supply of opioid medication for 120 days or more. Patients with low back pain were 34 percent less likely to be chronic users if they had early physical therapy. There was no association between physical therapy and chronic opioid use among patients with shoulder or neck pain.

"The general consensus is that for musculoskeletal pain, opioids generally aren't a long-term solution," Sun said. "Aside from all the other side effects, even if the medication is doing well for you, it will have less and less effect over time as your body builds up a tolerance." ...
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/ 2018 News, Daily News
Prices hospitals charge for their services will all go online Jan. 1 under a new federal requirement, but patient advocates say the realities of medical-industry pricing will make it difficult for consumers to get much out of the new data.

A new federal rule requires all hospitals to post online a master list of prices for the services they provide so consumers can review them starting Jan. 1.

The health care industry nationally has a reputation for having little price transparency, which can make it difficult for consumers to price compare. But the hospital’s master list prices, sometimes called a chargemaster, is also not a complete look, consumer advocates say.

That’s because the final bill a patient receives is almost never the same as the sticker price for the services they received. Insurance companies negotiate discounts on the sticker prices. Co-pays, co-insurance, deductibles also add other layers of complexity that bring discounts or increased costs before a final charge is determined.

"The list prices are so high that the vast majority of hospitals don’t even try to collect list prices from uninsured patients," said Benedic Ippolito, with the American Enterprise Institute, who has researched hospital list prices.

The federal rule is being brought out as a measure to improve competition and help educate consumers.

"We are just beginning on price transparency," Seema Verma, head of U.S. Centers for Medicare & Medicaid told the Associated Press. "We know that hospitals have this information and we’re asking them to post what they have online."

But real transparency comes when consumers can easily see what they will pay to a provider based on their insurance benefits, said Thomas Campanella, Baldwin Wallace University health care MBA program director. He said some insurance companies are providing that information through price comparison tools. "I almost see it being more of a political ‘look at what we did,’" Campanella said of the requirement to post list prices.

A benefit of having health insurance is that the insurance companies negotiate with hospitals on a discount from what is listed on the chargemaster. If a hospital is "in network" it means the insurer and hospital have an agreement on discounted rates and the insurance company typically covers a higher portion of those prices. If a patient goes to a medical provider that is out-of-network, they could be billed the difference between what the chargemaster lists as the price and what their insurance writes a check for. The practice is called balance billing or sometimes called "surprise billing."

Miranda Creviston Motter, president and CEO of Ohio Association of Health Plans, which represents insurance companies, said as health care costs continue to rise, provider cost information is important and the association supports federal policies requiring providers to provide easy to understand cost information directly to health care consumers.

"This information supplements the cost information health plans currently offer their members. ," she said in a statement.

Price comparison tools are becoming increasingly available through insurance companies, but they have limits in usefulness. Not all health care costs can be shopped for ahead of time, such as emergency visits, and consumers can prioritize other things besides cost, such as a doctor they trust or a hospital close to home. Only a small number of employees at two large companies with a price transparency tool used the tool and it was not associated with lower health care spending, according to 2016 study in the Journal of the American Medical Association.

Scott McGohan, CEO of McGohan Brabender, a benefits broker, said while many of the major insurance carriers have price shopping tools, it’s not always easy to know enough about medicine to know how to price shop ...
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/ 2018 News, Daily News
A Santa Clara County sheriff’s lieutenant was arrested on Wednesday in Las Vegas for allegedly faking the extent of an injury and receiving workers’ compensation.

Lt. Mandy Henderson was arrested by Las Vegas police after sheriff’s investigators saw her engaging in "strenuous workouts" despite her claim of injury, according to the sheriff’s office.

Henderson was arrested on a felony warrant and is awaiting transportation from Las Vegas to Santa Clara County.

The sheriff’s office is conducting an internal affairs investigation in addition to its criminal investigation of Henderson.

The public pay database Transparent California says Henderson last year received $33,736 in pay and $27,550 in benefits. In 2016, she received $155,206 in pay and $78,873 in benefits ...
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/ 2018 News, Daily News
Patients undergoing surgery don’t often receive practical advice about what to do and what to expect during the recovery process, says a surgeon who has been on the giving and receiving end of post-op instructions.

These directions need a more commonsense approach to rest, diet and pain, Dr. J. David Richardson of the University of Louisville School of Medicine in Kentucky writes in the Journal of the American College of Surgeons.

"We give patients these catchphrases about how they’ll feel better, but that’s not always true," Richardson told Reuters Health.

"For a long time, surgeons have been happy with surgical outcomes as long as a big issue didn’t come up, such as an infection," he said in a phone interview. "Patients are concerned about the small aspects of recovery, and we should be attuned to that."

One of the most important tenets of recovery, he writes in his commentary, is that it’s not a progressive linear process. The advice that 'You will feel better every day' is not true, for example, and it often makes patients uneasy when they don’t recover as they believe they should.

Instead, patients tend to have a 'stuttering progression to wellness,' Richardson writes, which means three steps forward and two steps back. When patients are aware of this, they’re less apprehensive and less discouraged when they have a “bad day.” Rather than measuring progress daily, he advises tracking progress from one Friday to the next.

'Some days just don’t go that well, which is the way the body functions,' he told Reuters Health. 'Patients need to know that what they’re going through is normal.'

Richardson also disagrees with the advice to recovering patients about activities, "You can do what you feel like doing." Although it sounds practical, this often backfires or discourages patients as they go through the healing process. Some feel great after waking up but then have fatigue or adverse reactions later in the day. Those who try to drive, shop or return to work too quickly may "hit a wall," he notes.

The body needs a physical recovery as much as a mental recovery, he notes, so he often tells patients to be cautious about performing mental tasks after a significant operation. Avoid "trying to work in a fog" or making important decisions in early post-operative stages, Richardson said.

Diet is another aspect that is often misrepresented, and the advice to "Eat what you feel like eating" can be too vague. Instead, a slower progression to a full normal diet could prevent nausea, vomiting, bloating, constipation and other gastrointestinal issues that occur during the early recovery phase. This is particularly true when patients are taking new pain medications, Richardson added.

On a related note, pain management can also be misleading, he said. The opioid crisis speaks to the dangers of over-prescribing pain drugs, and points to the fact that pain is an individual response. Some patients require fewer doses, and others need heavy doses, but prescriptions are often given "by the book" where one size fits all. A more nuanced, individualized approach would help, taking into account previous pain medication use, psychotropic medication use and previous operation recovery experience ...
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/ 2018 News, Daily News
California Assemblywoman Lorena Gonzalez (D-San Diego) has introduced legislation intended to strengthen employee rights and define the role of an independent contractor.

The bill (A.B. 5), introduced this month, would add to state law the "ABC test" regarding independent contractors. The test was adopted unanimously by California’s Supreme Court in the case of Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (Dynamex) in an April decision.

The court ruled in favor of workers when Dynamex, a package and documents delivery company, converted all of its drivers to independent contractors to save money.

In its decision, the court sided with the drivers and established the three part "A-B-C" test, which requires workers to be classified as independent contractors if:

A) The worker is "free from control and direction" of the employer as it relates to performance of the work.
B) The work is performed "outside the usual course" of the hiring entity’s business.
C) The worker engages in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity.

In its decision, the Court cited the harm to misclassified workers who lose significant workplace protections, the unfairness to employers who must compete with companies that misclassify, and the loss to the state of needed revenue from companies that use misclassification to avoid obligations such as payment of payroll taxes, payment of premiums for workers compensation, Social Security, unemployment, and disability insurance.

Independent contractors are not guaranteed the protection of workplace health and safety rights, including a minimum wage, paid sick leave, workers’ compensation benefits if injured on the job or unemployment benefits if laid off.

The proposed law will be heard in committee on January 3rd.

Misclassifying workers as independent contractors has been "a significant factor in the - rise in income inequality" in California, according to the bill.

"In a state with one of the country’s highest poverty rates, this court decision is crucial to helping Californians maintain solid employment in an economy that’s left millions struggling," Gonzalez said in a Dec. 5 press release. "Individuals are not able to make it on three side hustles. That shouldn’t be the norm. That shouldn’t be accepted." ...
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/ 2018 News, Daily News
Robert L. Hamilton was working as a letter carrier for the United States Postal Service when he was injured on the job on November 28, 2014, due to slipping and falling while delivering packages. On January 13, 2015, Hamilton began receiving wage replacement based on his claim of temporary total disability

After a co-worker saw Hamilton at a casino in March 2015, a federal agent was assigned to conduct surveillance of Hamilton. The surveillance revealed that Hamilton was able to perform certain physical acts that he told his doctor were impossible. Specifically, the doctor was shown surveillance videos of Hamilton and concluded that Hamilton had exaggerated or misrepresented some aspects of his medical condition.

After Hamilton became aware that he was being investigated, he returned to work on August 26, 2015, and then retired on September 1, 2015. Thus, Hamilton received wage replacement compensation from the Department of Labor pursuant to FECA from January 13 to August 25, 2015.

The District Attorney in San Diego County filed a criminal complaint against Hamilton on April 13, 2016, which charged Hamilton with eight counts of violating Insurance Code section 1871.4, subdivision (a)(1)

A jury convicted him on three counts of making a false or fraudulent statement for the purpose of obtaining compensation under the California workers' compensation law in violation of Insurance Code section 1871.4, subdivision (a)(1).

The trial court placed Hamilton on formal probation for a period of three years and ordered that he serve 180 days in custody, with the intention that Hamilton serve the term of custody in home detention with electronic monitoring, if he was eligible. Among other things, the trial court also ordered that Hamilton pay $11,972 in victim restitution to the United States Department of Labor.

Hamilton appealed claiming that Insurance Code section 1871.4, subdivision (a)(1) applies only to false or fraudulent statements made for the purpose of obtaining compensation afforded under the California workers' compensation law, which was not applicable to him as a federal employee. The Court of Appeal agreed, and reversed the conviction and dismissed the case in the published decision of People v Hamilton.

The Insurance Code makes it a crime to "[m]ake or cause to be made a knowingly false or fraudulent material statement or material representation for the purpose of obtaining or denying any compensation, as defined in Section 3207 of the Labor Code." Labor Code section 3207 defines compensation as "compensation under this division..." The division of the Labor Code referred to in section 3207 is Division 4 of the Labor Code, which covers California workers' compensation laws, and is titled "Workers' Compensation and Insurance."

The provisions in Division 4 of the Labor Code, when read together, make clear that its provisions do not cover a federal employee of the United States Postal Service ...
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/ 2018 News, Daily News
International medical experts warn in an open letter to health authorities that forcing patients off opioid painkillers could sometimes do more harm than good. The letter, published in the journal Pain Medicine, outlines risks associated with forced tapering of the addictive drugs and petitions U.S. policymakers to develop guidelines that are not "aggressive and unrealistic."

The U.S. Centers for Disease Control and Prevention advocates tapering and, in some cases, discontinuing opioids in patients using them as long-term therapy for chronic pain.

However, in their letter, Beth Darnall of Stanford University in California and coauthors say mandated opioid tapers requiring "aggressive" dose reductions over a defined period, even when that period is an extended one, could be problematic.

"Opioid tapering guidelines were created, in part, to decrease harm to patients resulting from high-dose opioid therapy for chronic pain. However, countless "legacy patients" with chronic pain who were progressively escalated to high opioid doses, often over many years, now face additional and very serious risks resulting from rapid tapering or related policies that mandate extreme dose reductions that are aggressive and unrealistic."

"Rapid forced tapering can destabilize these patients, precipitating severe opioid withdrawal accompanied by worsening pain and profound loss of function."

The authors call for "compassionate systems for opioid tapering" in carefully selected patients, with close monitoring and realistic goals. They also call for "patient advisory boards . . . to ensure that patient-centered systems are developed and patient rights are protected."

"The assumption that forced opioid taper is reliably beneficial is not supported by evidence, and clinical experience suggests significant harm," said Ajay Manhapra of Yale University, who co-authored the letter.

For example, the letter notes, rapid forced tapering can destabilize patients, lead to a worsening of pain, precipitate severe opioid withdrawal symptoms and cause a profound loss of function. Some patients may seek relief by sourcing illicit, and more dangerous, opioids, while others risk becoming "acutely suicidal", the paper adds.

Patients on legacy opioid prescriptions require different considerations and careful attention to the methods by which opioid tapers might be considered and implemented.

Currently, no data exist to support forced, community-based opioid tapering to drastically low levels without exposing patients to potentially life-threatening harms.

Existing data that support rapid reductions of opioid doses - often to zero - were conducted in highly structured, supportive, interdisciplinary, inpatient settings or "detox" programs in which medications and other approaches were used to minimize the symptoms of withdrawal. These data do not inform community-based opioid tapering. Currently, nonconsensual tapering policies are being enacted throughout the country without careful systems that attend to patient safety. The methods by which a taper is conducted matter greatly.

The letter petitions the U.S. Department of Health and Human Services to consider patient data and include pain specialists when developing opioid tapering guidelines.

Manhapra believes the onus remains on policymakers. "It appears that the storm blew one way from 1980’s to 2016 and now it is blowing hard the other way, while we (doctors) stand staggering at the same spot trying to take care of our patients who are suffering," he said ...
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/ 2018 News, Daily News
The Agriculture Improvement Act of 2018 was signed into law this week. Among other things, this new law changes certain federal authorities relating to the production and marketing of hemp, defined as cannabis (Cannabis sativa L.). These changes include removing hemp from the Controlled Substances Act, which means that it will no longer be an illegal substance under federal law.

Hemp is a type of cannabis plant with no or extremely low concentrations of the psychoactive compound known as THC, the ingredient in marijuana associated with "high" feelings. The Farm Bill removed hemp from the Controlled Substances Act, allowing for its commercial production in the United States, as long as those plants contain no more than 0.3 percent of THC.

Congress explicitly preserved the FDAs current authority to regulate products containing cannabis or cannabis-derived compounds under the Federal Food, Drug, and Cosmetic Act. In doing so, Congress recognized the agency’s important public health role with respect to all the products it regulates.

This allows the FDA to continue enforcing the law to protect patients and the public while also providing potential regulatory pathways for products containing cannabis and cannabis-derived compounds.

To help members of the public understand how the FDA’s requirements apply to these products, the FDA has maintained a webpage with answers to frequently asked questions, which we intend to update moving forward to address questions regarding the Agriculture Improvement Act and regulation of these products generally.

In view of the proliferation of products containing cannabis or cannabis-derived substances, the FDA will advance new steps to better define its public health obligations in this area. It will also continue to closely scrutinize products that could pose risks to consumers. Where we believe consumers are being put at risk, the FDA will warn consumers and take enforcement actions.

While products containing cannabis and cannabis-derived compounds remain subject to the FDA’s authorities and requirements, there are pathways available for those who seek to lawfully introduce these products into interstate commerce. The FDA will continue to take steps to make the pathways for the lawful marketing of these products more efficient.

These pathways include ways for companies to seek approval from the FDA to market with therapeutic claims a human or animal drug that is derived from cannabis.

The FDA intends to hold a public meeting in the near future for stakeholders to share their experiences and challenges with these products, including information and views related to the safety of such products.

A number of small companies are already selling CBD in oils, beverages, topical creams and other products, and in some instances shipping them across state lines. The market for CBD derived from hemp could reach $22 billion by 2022, according to a report issued earlier this year by the cannabis industry analysis firm the Brightfield Group, which assumed passage of the farm bill in its forecast.

Coca-Cola Co in September became one of the largest U.S. companies to express interest in CBD, saying in a statement that it was "closely watching the growth of non-psychoactive CBD as an ingredient in functional wellness beverages around the world."
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/ 2018 News, Daily News
A Contra Costa County jury found defendant David Michael Bufano guilty of violating California Labor Code for failing to provide workers’ compensation insurance for his employees. Bufano is the owner and operator of Grant Street Pub & Pizzeria in Concord and has at least 18 employees.

Additionally, the jury found Bufano violated state law when he violated a stop work order issued by the Department of Industrial Relations.

Bufano was sentenced to two years of court probation and fined $10,000. Under the Labor Code, the fine is paid to the California State Treasury to the credit of the Uninsured Employers Fund.

In July 2018, the District Attorney’s Office filed a criminal complaint against Bufano. The criminal filing stemmed from a joint enforcement strike force operation with the District Attorney’s Office, Department of Industrial Relations’ Labor Commissioner’s Office and Employment Development Department.

Inspectors from these agencies conducted surprise inspections at Contra Costa County restaurants during the summer of 2018. These restaurants were suspected of deliberately evading the obligation to provide workers’ compensation insurance to employees.

Bufano’s restaurant was cited on June 25 and a stop work order was issued by the Labor Commissioner until he could provide proof of workers’ compensation insurance. The very next day, Bufano’s employees were back at work at his direction in violation of the stop work order.

On June 27, a follow-up inspection revealed that the restaurant remained open for business and employees were present working. Bufano still had not obtained workers’ compensation insurance at the point of the follow-up inspection. He was cited by the Labor Commissioner and fined $6,000.

Willful failure to provide the insurance is punishable by substantial fines and misdemeanor criminal prosecution. Employees that do not know whether they are covered can check their employer’s notices board or ask a manager. Labor Code section 3550 requires an employer to post a notice identifying the current insurance at a conspicuous location.

The misdemeanor counts against Bufano are: Count 1, Failure to Obtain Workers’ Compensation Insurance Coverage and Count 2, Failure to Observe Stop Order ...
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/ 2018 News, Daily News
The California Insurance Commissioner issued a Decision and Order imposing a $4,345,000 penalty on American Labor Alliance and CompOne USA for selling workers' compensation and liability policies to employers of farmworkers without being properly licensed with the Department of Insurance.

Central Valley based American Labor Alliance attracted customers by marketing low workers' compensation premium rates. It had contracted with fewer than 100 employers and had a small membership roll before 2016, but its membership surged after it introduced its workers’ comp benefit, according to documents from the department. It had more than 400 employers with 30,000 members as of February 2017. "Two-thirds of those employees are seasonal agricultural workers employed by roughly 50 farm labor contractors," according to documents from the department.

American Labor Alliance and CompOne USA are subsidiaries of Agricultural Contracting Services Association, which is a Nevada not-for-profit corporation headquartered in Clovis, Calif., according to documents from the Department of Insurance. It characterizes itself as a "union labor organization" operating in California, New York and Georgia. Neither Agricultural Contracting Services Association nor any of its subsidiaries is licensed by the California Department of Insurance.

Despite a Cease and Desist Order issued by the Department of Insurance in October 2016 against the Agricultural Contracting Services Association, Incorporated and its affiliates, the American Labor Alliance and CompOne USA, and Board Chair Marcus Asay, and a Decision and Order issued by Commissioner Jones in November 2017 ordering them to refrain from selling insurance policies in California, the company continued to transact insurance without a license.

The new Decision and Order imposes the $4.3 million penalty that represents $5,000 for each of the 869 days that the companies sold workers’ compensation insurance without a license.

Pursuant to California Insurance Code section 12921.8, the Commissioner may also impose a monetary penalty which shall be the greater of five times the amount of money received by the company for which the license was required, or five thousand dollars ($5,000) for each day the company transacted insurance without a license.

FBI agents on behalf of the U.S. Department of Labor served warrants for workplace injury benefit program records in July 2017 at the headquarters office of American Labor Alliance.

Employers transacting business with Agricultural Contracting Services Association, Inc., American Labor Alliance, or affiliate CompOne USA, should contact the Department of Insurance Investigation Division at 661-253-7500 for assistance in determining the validity of their workers' compensation coverage.
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/ 2018 News, Daily News
The Department of Industrial Relations reports that 376 Californians died on the job in 2017, the same as in 2016.

California’s workplace fatality rate remains stable with slight fluctuations over the past eight years. On the national level, the rate of fatalities decreased from 3.6 to 3.5 per 100,000 workers. There were 376 fatal injuries on the job in California in 2017 and 2016, compared to 388 in 2015, 344 in 2014, and 396 in 2013.

The data comes from the Census of Fatal Occupational Injuries (CFOI), which is conducted annually in conjunction with the U.S. Bureau of Labor Statistics (BLS). Figures for 2017 are the latest numbers available.

Key findings from the latest census in California include:

- More than one in five (22%) of all California workplace deaths identified in 2017 were attributed to trips, slips and falls; with 88% of those deaths involving falls to a lower level.

- Assaults and violent acts in the workplace accounted for one of every five (20%) of all workplace deaths in the state in 2017.

- Nearly two of every five (37%) California workplace deaths identified in 2017 occurred in transportation-related incidents.

The percentage of Latino deaths in the workplace continues to be an area the department is monitoring. DIR remains committed to its workplace safety outreach and education efforts with a focus on high-hazard work, especially for monolingual Spanish-speaking workers.

DIR conducts the California Census annually in conjunction with the U.S. Bureau of Labor Statistics. CFOI produces comprehensive, accurate and timely counts of fatal work injuries. This Federal-State cooperative program was implemented in all 50 states and the District of Columbia in 1992. DIR protects and improves the health, safety and economic well-being of over 18 million wage earners, and helps their employers comply with state labor laws.

Its Division of Occupational Safety and Health, commonly known as Cal/OSHA, helps protect workers from health and safety hazards on the job in almost every workplace in California. Cal/OSHA does not have authority when injuries occur on public roadways where other state or federal agencies have jurisdiction, such as the California Highway Patrol.

Cal/OSHA’s Consultation Services Branch provides free and voluntary assistance to employers to improve their safety and health programs. Employers should call (800) 963-9424 for assistance from Cal/OSHA Consultation Services. Cal/OSHA has also published a wealth of helpful guides for employers and workers.

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/ 2018 News, Daily News
The Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization. In order to prevail in a RICO action, a plaintiff must prove a "predicate offense" one of which is fraud. In addition to the predicate offense, a plaintiff must also prove a "pattern of racketeering activity."

The plaintiffs bar has sought to apply RICO laws as a penalty in workers' compensation claims for at least a decade with poor results. Conceptually they allege that an employer, carrier or third party administrator concocts a fraudulent scheme that is used over and over to prevent workers from obtaining just benefits.

Plaintiff efforts to succeed at RICO in the federal 6th Circuit (Kentucky, Michigan, Ohio, and Tennessee) ultimately ended in failure. In one the the last tries, a Michigan claimant alleged that employer/carrier defrauded him with "false" medical testimony, and filed federal Racketeer Influenced and Corrupt Organizations Act RICO case, In that case, Brown v. Ajax Paving Industries, 752 F.3d 656 (2014), the United States Court of Appeals for the Sixth Circuit followed the prior ruling in Jackson v. Sedgwick Claims Management Services, a carbon copy of this case, 731 F.3d 556, 558 (6th Cir.2013) (en banc).

Essentially in the 6th Circuit, RICO cannot be based on an underlying workers' compensation claim because the court held that "loss or diminution of benefits the plaintiff expects to receive under a workers' compensation scheme does not constitute an injury to 'business or property' under RICO."

The effort to win comp related RICO cases then moved to the 9th Circuit (nine western states including California and Arizona) arguably the most liberal Circuit in the federal system. In Laurie Miller et al. v. York Risk Services Group, nine plaintiffs worked as firefighters or engineers for the Phoenix fire department, and York adjusted the department's workers comp claims. The plaintiffs alleged, in part, that York worked with the City of Phoenix to wrongfully deny or delay their workers comp benefits in violation of the federal RICO Act. Before the case went to trial, it was settled at the end of 2015. Thus the concept was not tested in the 9th Circuit Court of Appeals.

Now they have lost another RICO case this time filed in California.

John Black, and a group of police officers and fire fighters assert a RICO claim involving the City of Rialto and the City of Stockton, CorVel Enterprises, York Risk Services Group and others. These plaintiffs allege "York, CorVel, and Rialto engaged in a pattern of fraudulently denying and delaying legitimate claims in order to lower the liability of the city, while at the same time maximizing the TPA’s revenues (and allowing the TPA to maintain and obtain contracts with other public entities based on their 'outstanding' financial performance at the expense of public servants)"

In 2016 the federal trial judge reviewed the 4th amended complaint and dismissed the case without leave to amend. The decision was based in part upon a determination that a workers' compensation benefit is not a property right subject to RICO, a ruling consistent with the 6th Circuit.

The 9th Circuit Court of Appeals just affirmed the dismissal in the unpublished case of Black v CorVel Enterprises Comp Inc. The 9th Circuit Court of Appeals ruled that "Appellants fail to establish any property interest in their workers’ compensation benefits prior to a final award of benefits" citing Angelotti, 791 F.3d at 1081. "Therefore, the district court properly dismissed Appellants’ 42 U.S.C. §1983 claims."

Additionally they said "we find the exclusive remedy provision of the WCA preempts Appellants’ IIED and UCL claims. Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 14 P. 3d 234, 244-45 (Cal. 2001). Appellants’ alleged injury is 'a normal part of the [workers’ compensation] claims process.' Id. at 250 (citing Marsh & McLennan, Inc. v. Superior Court, 774 P.2d 762, 767 (Cal. 1989)). Therefore, the district court properly dismissed Appellants’ state law claims pursuant to the exclusive remedy provision of the WCA." ...
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/ 2018 News, Daily News
Special Agents with the DEA arrested an Orange County doctor on federal charges that allege he illegally distributed opioid and other powerful narcotics by writing prescriptions for "patients" without medical examinations and to at least five individuals who suffered overdose deaths.

One man who allegedly obtained prescriptions from the doctor was involved in a car accident last month that killed a bicyclist who was a captain with the Costa Mesa Fire & Rescue Department.

Dzung Ahn Pham, 57, of Tustin, who owns Irvine Village Urgent Care, was arrested pursuant to a criminal complaint that charges him with two counts of illegally distributing oxycodone. The complaint alleges that Pham issued prescriptions for the controlled substance outside the usual course of professional practice and without a legitimate medical purpose.

The affidavit in support of the criminal complaint alleges that Pham was selling prescriptions to "patients" who were drug addicts and/or who were selling the drugs on the black market. A review of the CURES database shows that Pham issued "an extremely high amount" of prescriptions over a three-year period, and the types of drugs prescribed to certain patients would lead to "higher risks for addiction, overdose and overdose death," according to the affidavit.

Investigators learned that a CVS pharmacy in Irvine stopped accepting prescriptions from Pham more than five years ago when the doctor could not justify the number of opioid pills he was prescribing to individual patients.

During two undercover operations this past summer that are discussed in the affidavit, a DEA agent quickly and easily obtained prescriptions for narcotics, including "a triple threat," also referred to as a "Holy Trinity, [which] is the combined use of an opioid (such as hydrocodone), a benzodiazepine (such as Valium), and carisoprodol (a muscle relaxer like Soma)." Pham allegedly steered the undercover agent to an Irvine pharmacy that filled many of his prescriptions.

The affidavit contains text messages in which "patients" seek prescriptions, sometimes asking for specific quantities of particular narcotics in specific dosages. "[A]t least 84 of those patients had their prescriptions filled on the same day or within the next two days of their text messages," according to the affidavit.

The affidavit also details a text message sent by Pham, who expressed concern after receiving information that the individual who fatally shot 12 people last month at the Borderline Bar and Grill in Thousand Oaks had in his possession prescriptions for someone else, but which Pham had prescribed.

Between 2013 and September 2018, Pham deposited over $5 million, mostly in cash, into bank accounts held by Pham and his wife, according to the affidavit, which notes the he also deposited approximately $1.7 million, likely derived from insurance payments, into a business bank account.
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/ 2018 News, Daily News
The Internal Revenue Service has announced that the standard mileage rate for business miles will increase to 58.0 cents per mile as of January 1, 2019, up 3.5 cents from the rate for 2018.

As a result, the California Workers’ Compensation Institute (CWCI) notes that effective for travel on or after January 1, 2019, the rate that California workers’ compensation claims administrators pay injured workers for travel related to medical care or evaluation of their injuries will also increase to 58.0 cents per mile.

The new workers’ compensation medical mileage rate will apply for 2019 travel dates, regardless of the date of injury on the claim, but for 2018 travel dates claims administrators should continue to pay the current rate of 54.5 cents per mile.

California Labor Code §4600 (e)(2), working in conjunction with Government Code §19820 and Department of Personnel Administration regulations, requires claims administrators to reimburse injured workers for such expenses at the rate adopted by the Director of the Department of Personnel Administration for non-represented (excluded) state employees, which is tied to the IRS published mileage rate.

In a Newswire issued December 14, the IRS announced that as of January 1, 2019, the standard mileage rate will increase to 58 cents per business mile driven. The IRS bases the standard mileage rate on an annual study of the fixed and variable costs of operating an automobile, which includes the cost of gasoline and depreciation.

There have been multiple mileage rate changes over the past decade, so the California Division of Workers’ Compensation has posted downloadable mileage-expense forms on the forms section of its website www.dir.ca.gov/dwc/forms-Mileage.html) which show applicable rates based on travel date.

A new form with the 2019 rate will be posted shortly, but should not be used until reimbursements are made for 2019 travel. In the meantime, claims organizations should alert their staff and programmers that the medical mileage rate will increase to 58.0 cents per mile for travel on or after January 1, 2019.
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/ 2018 News, Daily News
This year, the FDA has approved the first generic version of Suboxone (buprenorphine and naloxone) sublingual film for the treatment of opioid dependence. Mylan Technologies Inc. and Dr. Reddy's Laboratories SA received approval to market buprenorphine and naloxone sublingual film in multiple strengths. The approval comes with potential to increase access to these treatments for those with opioid use disorder.

"The FDA is taking new steps to advance the development of improved treatments for opioid use disorder, and to make sure these medicines are available to the patients who need them," said FDA Commissioner Scott Gottlieb, MD, in a statement. "That includes promoting the development of better drugs, and also facilitating the market for entry of generic versions of approved drugs to help ensure broader access."

The film is applied under the tongue and serves as a medication-assisted treatment (MAT) - a comprehensive approach combining FDA-approved medications (methadone, buprenorphine, or naltrexone) with counseling and other behavioral therapies to treat patients with opioid use disorder.

Regular adherence to MAT with buprenorphine has been shown to reduce opioid withdrawal symptoms, as well as the desire to use opioids. According to the Substance Abuse and Mental Health Services Administration, those receiving MAT treatment for opioid use disorder cut their risk of mortality from all causes in half.

In response to the generic challenge, Indivior Plc said it will launch a cheaper version of its blockbuster opioid addiction treatment, Suboxone, as it seeks to claw back market share lost to copycat versions of the drug.

The British drugmaker is also looking to reduce its dependence on Suboxone, which accounts for about 80 percent of its revenue, by focusing on another opioid addiction drug Sublocade and schizophrenia treatment Perseris.

It expects four generic versions of Suboxone in the market, including its own, Chief Executive Shaun Thaxter said in a call with analysts.

Last week Indivior won a fresh hold against a knock-off version from Dr. Reddy’s Laboratories, while Teva Pharmaceuticals said in September it would hold off launching its version until Indivior’s other cases were resolved.

Indivior said it expects its cheaper Suboxone copy to generate revenue in the range of tens of millions of dollars, but did not specify when it would be launched.

The company said it was confident of the drug generating peak net revenue of more than $1 billion ...
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It's rare for prosecutors to bring homicide charges against a physician for a patients death. But the Los Angeles district attorney's office claimed that the second-degree murder convictions in 2015 of a Los Angeles area doctor were the first against a U.S. doctor for recklessly prescribing drugs,

In 2007 Dr. Hsiu Ying Lisa Tseng, a licensed physician practicing internal medicine and osteopathy, joined Advance Care AAA Medical Clinic in Rowland Heights, a general medical practice operated by her husband.

By 2010, the clinic had developed a reputation as a place where patients could easily obtain prescriptions for controlled substances, including opioids, sedatives, muscle relaxants, and drugs used to treat drug addiction. According to one visitor, the clinic looked "like a parole office" with "drug dealing."

Beginning in 2008, pharmacists began to refuse to fill prescriptions written by Tseng because the prescriptions raised "red flags"; the patients’ profiles, conduct, and the combination of substances and quantities Tseng prescribed indicated no legitimate medical purpose for writing the prescriptions. When Tseng learned of this, she referred her patients to "mom and pop" pharmacies, which continued to fill her prescriptions.

That same year, law enforcement investigators, including investigators from the coroner’s office, began calling Tseng to discuss the deaths of several of her patients and to apprise her that the patients had died of suspected drug overdoses shortly after obtaining prescriptions from her.

A dozen of Tseng's patients died, though prosecutors only brought three murder charges because of other factors involved in some of those deaths, such as drugs prescribed by other doctors and a possible suicide. In 2012, Tseng was charged with three counts of second degree murder, 20 counts of unlawfully prescribing controlled substances to patients, and one count of obtaining a controlled substance by fraud.

After a a six-week trial, a jury found Tseng guilty of three counts of second degree murder, 19 counts of unlawfully prescribing controlled substances, and one count of obtaining a controlled substance by fraud. Jurors deliberated for 10 days before reaching the verdicts. The trial court sentenced her to 30 years to life in state prison. Tseng appealed, and the Court of Appeal affirmed in the partially published opinion of People v Hsiu Ying Lisa Tseng.

She claimed on appeal that substantial evidence did not support the murder convictions and that the trial court erred in (1) admitting evidence of six uncharged patient deaths; (2) failing to unseal and quash a search warrant of her financial records; (3) failing to grant a mistrial based on prosecutorial misconduct; (4) reopening closing argument; and (5) failing to apply Penal Code section 654 to the murder conviction sentences.

The Court of Appeal concluded that "None of her arguments are meritorious." ...
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A federal judge in Texas put an end to Obamacare, the Affordable Care Act, on Friday night, ruling in the case of Texas v. Azar, that the entire health-care law is unconstitutional because of a recent change in federal tax law. The ruling came on the eve of the deadline Saturday for Americans to sign up for coverage in the federal insurance exchange created under the law.

As part of the tax overhaul passed last year, the ACA penalty for not having health insurance was abolished. This went into effect in January, 2018.Officials in 20 states led by Texas Attorney General Ken Paxton - argued that with elimination of the health insurance requirement there is no longer a tax, and therefore the law loses its constitutionality.

In a 55-page opinion, federal judge Reed O’Connor agreed, and writes regarding the lawsuit: "The court finds the individual mandate can no longer be fairly read as an exercise of Congress’s tax power and is still impermissible under the interstate commerce clause ― meaning the individual mandate is unconstitutional". [T]he court finds the individual mandate is essential to and inseverable from the remainder of the ACA."

Since the lawsuit was filed in January, many health-law specialists have viewed its logic as weak but nevertheless have regarded the case as the greatest looming legal threat to the 2010 law, which has been assailed repeatedly in the courts.

The Supreme Court upheld the law as constitutional in 2012 and 2015, though the first of those opinions struck down the ACA's provision that was to expand Medicaid nationwide, letting each state choose instead. No matter how O'Connor ruled, legal experts have been forecasting that the Texas case would be appealed and could well place the law again before the high court, giving its conservative newest member, Justice Brett M. Kavanaugh, a first opportunity to take part.

It is expected that this ruling will be appealed to the Supreme Court. Pending the appeal process, the law remains in place. A spokeswoman for California Attorney General Xavier Becerra, who leads a group of states opposing the lawsuit, said that the Democratic defenders of the law are ready to challenge the ruling in the U.S. Court of Appeals for the 5th Circuit.

It was not immediately clear what the legal path will be from here. Technically, O'Connor granted summary judgment to the lawsuit's plaintiffs - the Texas attorney general, with support from 18 GOP counterparts and a governor.

Because the judge did not grant an injunction, as the plaintiffs had asked for, "it's unclear whether this is a final judgment, whether it's appealable, whether it can be stayed," said Timothy Jost, a health-law expert who is a professor emeritus at Washington and Lee University. Jost, an ACA proponent, predicted that a stay would lock in the law during appeals, saying that, otherwise, "it's breathtaking what [O'Connor]'s doing here on a Friday night after the courts closed." ...
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Peerless Building Maintenance Inc., operates a janitorial services company with over 500 employees.

A neighbor told Miguel Alvarez that Peerless might be hiring people to clean offices and he might consider applying for a job. Alvarez went to Peerless’s office in Chatsworth and submitted a job application.

When he submitted his job application, Alvarez could perform the duties of a janitor and he had no work restrictions. He did not request, and did not require, any accommodation from Peerless.

Peerless had a practice of running background checks on applicants for janitor positions. The background checks included workers’ compensation claim histories.

Peerless did not call Alvarez and did not hire him. According to Peerless, this was because it had lost Alvarez’s job application and could not contact him. Alvarez did not contact Peerless to ask about the status of his job application. In May or June 2016, Alvarez took a position painting houses and doing construction work for another company.

Alvarez filed a civil suit against Peerless. The theory of his lawsuit was that he was perceived as having had a history of FEHA disabilities. Alvarez did not allege that he was presently disabled or even that he was perceived as being presently disabled.

Peerless moved for summary judgment which the court granted. The court of appeal sustained the dismissal in the unpublished case of Miguel Alvarez v Peerless Building Maintenance Inc.

The plaintiff has the initial burden of producing evidence that establishes a prima facie case of discrimination. If the plaintiff establishes a prima facie case, creating a presumption of discrimination, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the challenged action.

While the employer’s knowledge of the employee’s disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under FEHA.

Alvarez’s background check listed one worker’s compensation matter. It did not contain any further information or details about the accident, Alvarez’s injury, or the workers’ compensation case. There was no evidence to suggest it knew, should have known, or perceived that Alvarez had a disability or a history of disabilities.

Alvarez asserted that Peerless learned that he "had two injured discs in his lower back as a result of his prior work which prevents him from performing some major life activities, but would not have prevented him from working as a janitor." In fact, however, the record contains no evidence that Peerless had information about Alvarez’s injured discs at any time before Alvarez filed his lawsuit ...
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/ 2018 News, Daily News
The WCIRB has released its quarterly update on California statewide insurer experience valued as of September 30, 2018. The report is mostly good news for California employers and industrial insurance carriers.

California written premium for the first nine months of 2018 is $13.1 billion, which is 3% below the written premium reported for the first nine months of 2017. Written premium for 2017 was 2% below that for 2016. The decrease in 2017 following 7 consecutive years of increases is primarily driven by decreases in insurer charged rates more than offsetting increases in employer payroll.

The projected industry average charged rate per $100 of payroll for policies incepting in the first nine months of 2018 is $2.28, which is 10% below the average rate charged in 2017. The January 1, 2019 approved advisory pure premium rates are on average 42% below those for January 1, 2015.

The WCIRB projects an ultimate accident year combined loss and expense ratio of 87% for 2017, which is 4 points higher than 2016 projections as premium levels have lowered while average claim severities moderately increased. Despite the projected increase, the combined ratios for 2014 to 2017 remain the lowest since the 2004 to 2006 period.

Indemnity claims continue to settle quicker, improving significantly over the last 6 years.

Claim frequency increased by 11% from 2009 to 2014, but has decreased by 4% from 2014 through the first 9 months of 2018. Frequency increases since 2011 have largely been attributed to increases in cumulative injury claims and claims from the Los Angeles Basin area.

Cumulative trauma (CT) claim rates increased by over 75% from 2005 to 2015. The ratio for 2016 declined modestly suggesting the CT claim growth is beginning to level off. Recent sharp increases in CT claims is focused entirely in the Los Angeles and San Diego areas.

Decreases in medical severities from 2011 to 2015 were driven by the medical cost savings arising from SB 863. The projected 2017 medical severity increase of 2% represents very modest growth compared to other post-reform periods of medical inflation in California.

The WCIRB projects the average cost (or "severity") of a 2017 indemnity claim to be approximately $69,500, which is 2% higher than the projected severity for 2016. Total claim severity growth over the last several years has been relatively modest as increases in average indemnity and ALAE costs have been in part offset by declines in average medical costs through 2016.

The full report is available in the Research section of the WCIRB website, WCIRB Quarterly Experience Report - As of September 30, 2018 ...
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