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Ronnie Barnes’s original industrial injury occurred in March 1981 while working for the State of California Employment Development Department. He sustained additional unspecified industrial injuries in May 1989 and July 1990 while working for the City of Long Beach.

He received his initial medical award against the EDD in 1982, which was modified and amended in 1982 and 1984 ultimately to include future medical treatment and a 10 percent penalty against EDD and its insurer, SCIF, for delayed payments

At some point, SCIF filed a petition to terminate this medical award. Barnes alleges all three defendants, SCIF, the City of Long Beach and Judge Louie conspired to defraud him out of his future medical award, including the 10 percent penalty.

In September 1992, SCIF stopped paying for and authorizing medical treatments for Barnes’s 1981 injury. In April 1993, Judge Louie issued an order disallowing medical charges and liens from Barnes’s treating doctor. SCIF then made an appointment for Barnes to be examined by an agreed medical examiner (AME). Judge Louie allegedly told Barnes at a March 1995 status conference that she would rule against him if he did not submit to an examination by an AME. Barnes agreed to the examination.

He was later advised by the Presiding Judge, that an unrepresented worker cannot agree to an AME. When he told Judge Louie of this, Judge Louie allegedly stated, "I know just how to get around that," and consolidated Barnes’s case against EDD with his worker’s compensation case against the City of Long Beach.

The PJ also indicated that WCJ Louie had no jurisdiction to terminate future medical care if no petition to terminate was filed within five years of the date of injury. That position was rejected in in Barnes v. Workers’ Comp. Appeals Bd. (2000) 23 Cal.4th 679 .

Barnes then filed a civil complaint that alleged the defendants engaged in fraud and conspired to deprive him of the benefits of a workers’ compensation award he originally received in 1982. He sought damages in the amount of $30,000,000

The trial court concluded it was without jurisdiction to hear the case, explaining that only the court of appeal and California Supreme Court had jurisdiction to review WCAB decisions under Labor Code section 5955. The Court of Appeal affirmed in the unpublished case of Barnes v SCIF (2019).

It concluded that the trial court properly found it lacked jurisdiction to hear Barnes’s complaint. The trial court also properly sustained the WCAB’s and Judge Louie’s demurrer without leave to amend on immunity grounds and properly granted the City’s motion for judgment on the pleadings based on Barnes’s failure to allege compliance with the claim presentation requirement ...
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/ 2019 News, Daily News
Several hospitals owned and operated by Sutter Health, a California-based healthcare services provider, and Sacramento Cardiovascular Surgeons Medical Group, Inc., a practice group of three cardiovascular surgeons, have agreed to pay the United States a total of $46,123,516.36 to resolve allegations related to reimbursement claims they submitted to the Medicare program.

The Physician Self Referral Law, commonly known as the Stark Law, prohibits a hospital from billing Medicare for certain services referred by physicians with whom the hospital has a financial relationship, unless that relationship satisfies one of the law’s statutory or regulatory exceptions. The law is intended to ensure that medical decisions are not influenced by improper financial incentives.

As part of the settlements, one of Sutter’s hospitals, Sutter Memorial Center Sacramento, has agreed to pay $30.5 million to resolve allegations that, from 2012 to 2014, it violated the Stark Law by billing Medicare for services referred by Sac Cardio physicians, to whom it paid amounts under a series of compensation arrangements that exceeded the fair market value of the services provided.

Relatedly, Sac Cardio has agreed to pay $506,000 to resolve allegations that it improperly submitted duplicative bills to Medicare for services performed by physician assistants that it was leasing to SMCS under one of those compensation arrangements.

Separately, Sutter has agreed to pay $15,117,516.36 to resolve other conduct that the company itself disclosed to the United States, principally concerning additional violations of the Stark Law.

Specifically, Sutter hospitals submitted Medicare claims that resulted from referrals by physicians to whom those hospitals (1) paid compensation under personal services arrangements that exceeded the fair market value of the services provided; (2) leased office space at below-market rates; and (3) paid reimbursements of physician-recruitment expenses that exceeded the actual recruitment expenses at issue.

Additionally, several Sutter ambulatory surgical centers double-billed the Medicare program by submitting claims that included radiological services for which Medicare separately paid another entity that had performed those services.

The allegations relating to SMCS and Sac Cardio were originally brought by Laurie Hanvey in a lawsuit filed under the whistleblower provisions of the False Claims Act, which allow private parties to bring suit on behalf of the federal government and to share in any recovery. The whistleblower will receive $5,891,140 as her share of the federal government’s recovery in this case.

These matters were handled on behalf of the government by the Civil Division’s Commercial Litigation Branch, the U.S. Attorney’s Office for the Northern District of California, and the U.S. Attorney’s Office for the Eastern District of California. Investigative support was provided by the Department of Health and Human Services’ Office of the Inspector General.
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/ 2019 News, Daily News
China has embarked on a program in which major cities bulk-buy certain drugs together, forcing companies to bid for contracts and driving down prices by an average of 52 per cent, one by as much as 90 per cent.

Beijing introduced the bulk-buy program last year, allowing some cities to band together to negotiate lower prices for medicines for use at public hospitals.

The program, when it was rolled out, saw 11 Chinese cities work together on a process to bulk-buy 25 types of drugs. This caused the price of some medicines to decrease over 90 percent.

Early this year, Chinese Vice-Premier Sun Chunlan said China would be expanding the program to cover more cities and drugs, as medicine prices must fall for health care to be affordable for the people.

China has now expanded a pilot drug bulk-buying program to almost the entire country in an attempt to negotiate lower prices from drug manufacturers, Reuters has reported. This is adding pressure on multinational pharmaceutical companies and their domestic rivals.

Medicines where generic versions are significantly cheaper than branded drugs will be prioritized for inclusion in a centralized procurement program, a State Council meeting chaired by Premier Li Keqiang said.

Drugs on the list so far include off-patent cancer treatment drug Pemetrexed, sold by Eli Lilly under the brand name Alimta, and leukemia therapy Imatinib, which is sold by Novartis as Gleevec. Local companies produce generic versions of both drugs.

The move caused the price of some medicines to plunge more than 90%, state news agency Xinhua said ...
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/ 2019 News, Daily News
The California State Auditor conducted an audit of the Department of Industrial Relations’ Division of Workers’ Compensation and its oversight and regulation of QMEs, as directed by the Joint Legislative Audit Committee. The full 52 page report has been made available online.

The review found that from fiscal years 2013-14 through 2017-18, the total number of QMEs decreased by 12 percent while requests for QMEs increased by 37 percent. Consequently, the availability of QMEs has decreased during those years, indicating that the current number of QMEs is not meeting the demand for their services.

During this time period, the number of panels that were requested to be replaced because QMEs were unavailable more than quadrupled - from about 4,600 replacement panels in fiscal year 2013-14 to nearly 19,000 in fiscal year 2017-18.

Nevertheless, DWC has not taken sufficient action to address the QME shortage, such as establishing a process to recruit new QMEs and updating the 13-year-old rates on the fee schedule that QMEs use to charge for their services, which could help DWC attract and retain QMEs.

Furthermore, DWC inappropriately used its reappointment process to discipline certain QMEs alleged to have committed overbilling violations. This practice raises concerns about due process. Specifically, instead of having used its regulatory process to discipline QMEs at the time it identified alleged violations, DWC denied their reappointments because of the alleged violations.

Finally, DWC has not continuously reviewed medical-legal reports, prepared by QMEs and containing the findings of the examinations, for quality and has not tracked when workers’ compensation judges have rejected medical-legal reports because those reports failed to meet minimum standards. Because it did not perform these reviews or track when workers’ compensation judges rejected reports, DWC lacks the data to identify whether report quality is a systemic problem or whether individual QMEs are producing low-quality reports.

The auditor suggested that the Legislature should amend state law to specify that DWC review and, if necessary, update the fee schedule for compensating QMEs at least every two years based on inflation. And the Legislature should revise state law to increase the number of QMEs on the panels DWC provides.

The DWC should develop and implement a plan to increase the number of QMEs, prioritizing specialties with the greatest shortage relative to demand. It should also develop and implement separate written policies and procedures that define and specify its internal processes for disciplining and reappointing QMEs. As well as create and implement a plan to continuously review QME reports for quality and report its findings to its administrative director annually.

In response, the Division acknowledged and accepted the draft report’s recommendations, which it will work to implement by April 2020. It did however disagree with some of the conclusions

The DWC pointed out that the supply of primary care physicians in California is not sufficient to meet the population’s needs. Therefore, while attempts to increase the number of QMEs in our system can be made through outreach at medical and workers’ compensation conferences and in continued discussions with medical groups, the DWC faces headwinds in ending the persistent and ongoing decline ...
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/ 2019 News, Daily News
In September 2012, Governor Brown signed into legislation Senate Bill (SB) 863. This reform of the workers’ compensation system in California included Independent Medical Review (IMR), which went into effect January 1, 2013. The program is now in its seventh year.

The Department of Industrial Relations (DIR) and its Division of Workers’ Compensation (DWC) have posted a progress report on the Department’s Independent Medical Review (IMR) program.

In 2018, the Independent Medical Review Organization (IMRO) processed 252,565 applications, a slight increase from 2017. Of those, 74% (185,783) were determined to be eligible for review.

Concurrently, the IMRO issued 184,733 IMR determinations, a 7% rise from the prior year. At the end of 2017, the average length of time the IMRO took to issue a determination, after the receipt of all necessary medical records, was fourteen days. By the end of 2018, this decreased to a monthly average of nine days.

Overall, the IMRO overturned 10.3% of the utilization review decisions that denied treatment requests made by physicians treating injured workers. Analysis of several variables, including the geographic region of the injured worker, the time elapsed since the worker’s occupational injury occurred, and representation by an attorney or other entity acting on behalf of the worker, shows similar rates of overturned case decisions.

The highest number of requests was for pharmaceuticals, which comprise 42% of the issues in dispute, with opioids the most common drug class (33% of drug requests). As in previous years, the second- and third-highest number of requests were for diagnostic tests (e.g. imaging, radiology) (16% of requests) and rehabilitation services (e.g., physical therapy, chiropractic) (15%).

The treatment request denials that were overturned most often were for behavioral and mental health services (22% overturned) and evaluation and management, which include specialist consultations and dental services (18% overturned).

Changes in the Medical Treatment Utilization Schedule (MTUS) that took effect in 2018 include the new drug formulary and the update of several evidence-based guidelines. Expert reviewers for IMR apply these guidelines to their evaluations of medical necessity, citing the Chronic Pain, Low Back Disorders, and Opioid Guidelines most often.
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/ 2019 News, Daily News
56-year-old Earl "EJ" Thompson was sentenced to 10 years state prison for Workers' Compensation Insurance Fraud, Conspiracy, Wage Theft, Perjury, and Grand Theft.

After Thompson’s California Contractor’s License was revoked for fraud, he convinced his wife and friend to put their names on a new business, Russell/Thompson, which he would secretly run using the fraudulent contractor’s license they obtained. Thompson used that business to obtain a contract with UC Davis to build some of the Tercero South student housing.

During the construction, Thompson stole $633,199 in wages from his employees, defrauded his workers’ compensation insurance carrier, California State Compensation Insurance Fund, for $359,011, committed multiple acts of perjury to conceal his fraud, and caused a total loss of over $2 million.

Deputy District Attorney Jennifer McHugh prosecuted the case which included over 35,000 pages of discovery, over 60 defrauded employees, and involved 26 felony counts.

Over the course of the six years it took to prosecute the case, the defense filed multiple motions to dismiss counts or enhancements and the case was further delayed when Thompson claimed to be incompetent to stand trial. Ultimately the Court deemed Thompson competent to stand trial and criminal proceedings were reinstated.

On July 10, 2019, Thompson plead no contest to all charges pending against him and the Court heard evidence on the enhancements.

On November 13, 2019, the Court found Thompson ineligible for probation and sentenced him to 10 years in state prison. The Court considered Thompson’s extensive history of committing similar offenses, his prior felony convictions for insurance fraud and tax evasion, the sophisticated nature of Thompson’s fraud and the position of leadership that Thompson took in committing the crime. After getting out of prison for insurance fraud and tax evasion in 1995, he continued defrauding unsuspecting victims in California.

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/ 2019 News, Daily News
Insurance Commissioner Ricardo Lara has adopted and issued a revised average advisory pure premium rate, lowering the benchmark to $1.52 per $100 of payroll for workers’ compensation insurance, effective January 1, 2020.

This marks the ninth consecutive reduction to the average advisory pure premium rate benchmark since January 2015.

"Reduced costs should translate to real savings for California’s businesses while preserving protections for workers," said Commissioner Lara. "I encourage insurers to continue to reduce their prices to reflect the lower costs."

With an average filed pure premium rate of $1.99 per $100 of payroll as of July 1, 2019, insurers were applying pure premium rates that were approximately 19.2 percent more than the corresponding average advisory pure premium rate of $1.67 approved by the Commissioner as of January 1, 2019.

The indicated average advisory pure premium rate level of $1.52 approved by the Commissioner is about 23.6 percent lower than the industry filed average pure premium rate of $1.99 as of July 1, 2019.

Lara’s decision results in an advisory pure premium rate that is below the $1.58 average rate recommended by the Workers’ Compensation Insurance Rating Bureau (WCIRB) in its filing. Lara issued the advisory rate after a public hearing on October 14, 2019, and careful review of the testimony and evidence submitted by stakeholders. The pure premium rate is only advisory, as the Legislature has not given the Commissioner rate authority over workers’ compensation rates.

The WCIRB’s pure premium rate filing demonstrated continued decreases in costs in California’s workers’ compensation insurance market. The pure premium advisory rate reduction is based on insurers' cost data through June 30 of this year. Insurers' net costs in the workers' compensation system continue to decline as a result of SB 863, SB 1160, AB 1244, and AB 1124 enacted by the Legislature and Governor Jerry Brown.

The WCIRB notes continued favorable medical loss development including acceleration in claim settlement rates, and continued decline in pharmaceutical costs and lien filings ...
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/ 2019 News, Daily News
Ashley Molominico claimed that she injured her spine and internal organs while working for Secure Transportation. She requested that the lien claimant, Med-Legal Photocopy obtain records from multiple locations. The photocopy service issued several subpoenas duces tecum for multiple locations and issued numerous invoices in 2014 and 2015 for its copy services.

In 2018, the defendant issued eight Explanations of Review (EOR) for lien claimant’s copy services that were performed in 2014 and 2015.

In 2019, the claim proceeded to a lien trial on issues regarding lien claimant’s lien which were necessity and value of the copy services as well as penalty and interest.

The WCJ issued Findings and Orders, which found, that: defendant waived all objections to the unpaid portion of Med-Legal Photocopy’s billings; and lien claimant was entitled to reimbursement as well as penalty and interest.. The WCAB in an En Banc decision reversed and remanded this Order in the case of Colominico v Secure Transportation.

The WCAB concluded that a medical-legal provider has the initial burden of proof that: 1) a contested claim existed at the time the expenses were incurred, and that the expenses were incurred for the purpose of proving or disproving a contested claim pursuant to section 4620; and 2) its medical-legal services were reasonably, actually, and necessarily incurred pursuant to section 4621(a).

It also concluded that the defendant does not waive an objection based on Section 4620 or 4621 by failing to raise those objections in an explanation of review pursuant to section 4622.

In 1993 the Legislature amended Labor Code section 4622, by adding subdivision (d), which provided: "Nothing contained in this section shall be construed to create a rebuttable presumption of entitlement to payment of an expense upon receipt by the employer of the required reports and documents. This section is not applicable unless there has been compliance with Sections 4620 and 4621."

In its detailed analysis of the 1993 amendments, the Court in American Psychometric Consultants Inc. v. Workers' Comp. Appeals Bd. (Hurtado) (1995) 36 Cal.App.4th 1626 [60 Cal.Comp.Cases 559] held that "section 4622, which provides that an employer/carrier must protest a medical-legal billing within 60 days of receipt, has no application in its entirety when the medical provider has not complied with the "contested claim" rule, because the Legislature so provided, in Labor Code, section 4622, subdivision (d), as amended in 1993."

It also concluded that this holding in the holding in Otis v. City of Los Angeles (1980) 45 Cal.Comp.Cases 1132 [1980 Cal. Wrk. Comp. LEXIS 3527] (Appeals Board en banc) is inconsistent with section 4622, and it rejected the application of this holding in Otis with respect to the statutory framework of sections 4620, 4621, or 4622. Otis was decided in 1980, and the holding was based on the language of former section 4601.5. However, in 1984, subsequent to the issuance of Otis, section 4622(a) was enacted and former section 4601.5 was repealed. (Stats. 1984, ch. 596, § 4.) ...
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/ 2019 News, Daily News
Claims administrators are reminded that the annual report of inventory (ARI) must be submitted in early 2020 for claims reported in calendar year 2019.

The California Code of Regulations, title 8, Section 10104 requires claims administrators to file, by April 1 of each year, an annual report of inventory (ARI) with the DWC administrative director indicating the number of claims reported at each adjusting location for the preceding calendar year. Even if no claims were reported in the prior year, the report must be completed and submitted to the DWC Audit Unit. Each adjusting location is required to submit an ARI unless its requirement has been waived by the DWC administrative director.

When ARI requirements are waived, claims administrators must file an annual report of adjusting locations. This report is to be filed annually on April 1 of each calendar year for the adjusting location operations as of December 31 of the prior year.

Claims administrators are required to report any change in the information reported in the ARI or annual report of adjusting location within 45 days of the effective date of the change. Penalties of up to $500 per location for failure to timely file this Report of Inventory may be assessed under Title 8, California Code of Regulations, Section 10111.1(b)(11) or 10111.2(b)(26).

The form for 2020 can be found on the DWC website.

Questions about submission of the ARI or the annual report of adjusting locations may be directed to the Audit Unit:
State of California
Department of Industrial Relations

Division of Workers’ Compensation - Audit Unit
160 Promenade Circle, Suite #340
Sacramento, CA 95834-2962 ...
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/ 2019 News, Daily News
The Trump administration plans to release a sweeping proposal that would require hospitals to publicly disclose the discounted prices they secretly negotiate with insurance companies - a change intended to increase price transparency for patients shopping for care.

According to The Wall Street Journal, which first reported the news, the final rule will force hospitals in 2021 to report the rates they strike with individual insurers for all services, including drugs, supplies, facility fees and care by doctors who work for the facility.

The administration will also extend the rule to the $670 billion health-care industry, meaning that insurance companies, including Anthem and Cigna, and group health plans that cover employees will have to disclose negotiate rates and previously paid rates for out-of-network treatment in computer-searchable file formats, the Journal reported.

The proposal will likely face a legal challenge from hospitals and insurers, which have previously warned that transparency could actually force prices to rise because they would know the price that competitors offer, and therefore be unwilling to settle.

"Right now there is too much arbitrage in the system," a senior administration official told the Journal. "There are a ton of vested interests who will oppose this. We expect to get sued."

A similar health care transparency law in Ohio remains tangled in the legal web.

Still, the Trump administration contends that requiring hospitals to release the negotiated price is intrinsic to lowering costs. For instance, hospitals would need to disclose payer-specific charges for at least 300 shoppable services, 70 of which -- including vaginal birth, colonoscopy and joint-replacement surgery, are mandated in the rule. Hospitals can select the other 230 services they post online.

If the 6,000 hospitals that accept Medicare do not comply with the proposed requirement, they’ll be slapped with a $300 fine each day.

Prices charged for health care vary dramatically depending on several factors, including whether a patient is in or out of the patient's insurance network and what price the hospital negotiated with the insurance company. For instance, the cost of a mammogram ranges from $50 at a hospital in New Orleans, to $86,000 at a hospital in Massachusetts, according to Clear Health Costs, which publishes information on health costs.

By making those prices available to consumers, the Trump administration argues that hospitals will be under more pressure to compete, eventually causing prices to fall.

According to a September study conducted by the Kaiser Family Foundation, employer health-plan deductibles are outpacing wage growth and have increased to an average of $1,655 for a single plan. On average, workers contribute $6,015 toward the cost of coverage.
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/ 2019 News, Daily News
Quality Custom Distribution, a fast-food industry supplier for the likes of Starbucks, Chick-fil-A and Chipotle, is moving its corporate headquarters to Texas from Irvine.

It joins a growing list of California firms moving headquarters operations to Texas, most notably Toyota USA’s relocation from Torrance three years ago. Other movers include Occidental Petroleum (from L.A.) and Jamba Juice (from San Francisco).

The company, a logistics unit of food-industry supply giant Golden State Foods, runs a nationwide chain of 19 distribution centers that warehouses and distributes food and supplies to individual chain restaurants. The new headquarters will initially be home to between 30 and 45 workers, both relocations and new hires. It is expected to be open by January.

A Quality Custom statement said the move "will maximize company efficiencies by placing multiple services, including finance, accounting, customer service and purchasing, into one location."

Quality Custom is a food-delivery subsidiary of Golden State Foods, which started in 1947 as a meat supplier to Southern California restaurants and hotels. In the 1950s it won a curious new customer - the fledgling restaurant chain McDonald’s.

Things soon changed as that partnership helped Golden State Foods grow globally into an Irvine-based behemoth with $7 billion in revenues handling various industry functions from making food to warehousing and inventory management to stocking an estimated 120,000 restaurants.

The Quality Custom unit, as the name implies, handles some odd services for clients. Take a new warehouse in Fontana that opened last year with just one purpose: handling the needs of 300-plus Starbucks around Southern California.

In moving its corporate operations to Texas, Quality Custom felt a need to "better align our corporate resources with our business and provide enhanced support to our distribution centers and to our customers," said Ryan Hammer, Quality Custom’s corporate vice president and president of Golden State Foods’ logistics operations, said in a statement. He came to the company from Texas-based PepsiCo Inc. two years ago.

Hammer added: "This centralization will enable us to continue to grow our distribution business and solidify our position as a dominant player in the food industry. We are looking forward to expanding within the Dallas area, which we chose due to its central location, large talent pool, and excellent business community overall."

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/ 2019 News, Daily News
The California Trucking Association (CTA) filed a second amended complaint, in its lawsuit challenging a new labor law that seeks to give wage and benefit protections to workers in the gig economy, including those who are employed by Lyft and Uber.

The International Brotherhood of Teamsters has become a party to this high profile case.

The new California labor law, AB5 is expected to take effect on January 1, 2020. AB5 will make it harder for employers to claim their employees as independent contractors. The CTA brings this suit as they believe that AB5 violates their rights guaranteed by the Supremacy and Commerce Clauses of the US Constitution.

The complaint addresses the test that the California Supreme Court adopted in Dynamex. This test is used to determine whether a worker is an employee or an independent contractor.

Under this test, motor carriers in California would have to stop all contracting with independent contractors in order to prevent facing civil or criminal penalties. The complaint states: "The new ABC test is unlawful, and is void and unenforceable pursuant to the Commerce Clause of the United States Constitution as an unreasonable burden on interstate commerce."

The CTA also argues that AB5, a state law, conflicts with the federal law regulating commercial motor vehicle safety. Thus, in the present case, they believe that the federal law should rule due to the Supremacy clause of the Constitution. "At all relevant times, Plaintiffs, CTA members, and all other similarly situated, had, have and will have the right under the Supremacy Clause not to be subjected to or punished under state laws that interfere with, are contrary to, or otherwise preempted by federal law."

The First Amended Complaint was dismissed without prejudice in September. The dismissal did not address the merits of the claim. Instead it dismissed the case based upon standing to sue issues, and the "mootness" of the claim. A federal court does not have jurisdiction to hear cases that are neither ripe for review nor "moot." "Mootness is the ‘doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." ...
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/ 2019 News, Daily News
The prevalence of opioids in California workers’ comp lost-time claims has dropped 51% over the past decade, reducing both average benefit payments and average days away from work on those claims, so 10-year costs on 2010 through 2017 claims systemwide are projected to decline by an estimated $6.5 billion according to a new study by the California Workers’ Compensation Institute (CWCI).

The study’s authors analyzed 273,106 lost-time claims in which treatment was initiated within a 10-year period (2008 through 2017), with payment and prescription data on the claims valued through 2018.

The authors found that over the 10-year span of the study, chronic opioid use (defined as three or more opioid prescriptions, each filled at least three weeks apart, and all filled within four consecutive months) declined from 13% to 3% of all lost-time claims (a relative decline of 77%); while acute use (i.e., all other opioid use) declined from about 36% to just over 21% of the claims (a relative decline of 40%).

The study also showed that the strength of the opioids dispensed within the first 12 months of treatment, measured in cumulative morphine milligram equivalents, declined 59% for chronic opioid use claims, and 36% for acute opioid use claims.

Regression models were used to estimate the impact of opioid use versus non-use on benefit costs per claim. Applying these estimates against the declining opioid trend, the authors projected that savings will reach 16.5 percent for 2017 claims after 10 years of development, with a cumulative savings of $6.5 billion for 2010 to 2017 claims.

How much lower can opioid utilization fall? The Institute study concludes that future declines will depend on advances in evidence-based medicine research and treatment guidelines, medical providers’ continued adoption of alternative pain management protocols, continued elimination of fraudulent and abusive provider practice patterns, increased general awareness of the dangers of opioid use, and the growing number of class action lawsuits against opioid manufacturers.

CWCI’s Report to the Industry report :The Impact of Declining Opioid Use on Lost-Time Claim Development & Outcomes in California Workers’ Compensation" is available at www.cwci.org ...
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/ 2019 News, Daily News
In 2014, Ryan Patrick Natividad, 32, Corona, while working as a Costa Mesa Police Department officer, reported a work-related injury. He falsely claimed that earlier in the day, he struck his hand against a brick wall near the CMPD jail while transporting an arrestee for booking.

Natividad claimed that the arrestee stumbled into the wall, prompting him to use his hand to prevent the arrestee from striking the wall. He was subsequently directed by CMPD to seek immediate medical attention. He listed a jail employee as a witness to the incident in his injury paperwork.The employee reviewed the jail surveillance camera footage, determined that the incident the defendant reported never occurred, and brought the video footage to his supervisor’s attention.

The City of Costa Mesa, the city’s insurance company AdminSure, and a private investigation firm hired by AdminSure investigated Natividad’s workers’ compensation insurance claim and reported the fraud to the Orange County District Attorney’s Office, who investigated this case.

Natividad was sentenced to six months in county jail for committing insurance fraud by presenting a false insurance claim and making false material statements related to the claim, after he was found guilty of one felony count each of insurance fraud and making a fraudulent statement, after a jury trial on Feb. 16, 2017.

Before trial, the prosecution filed a motion in limine to admit evidence of Natividad’s 2009 workers’ compensation claim for a right hand injury while booking an arrestee. The prosecutor argued that because of the similarities, evidence of the 2009 claim was admissible to prove knowledge, common plan, and absence of mistake in the 2014 claim even though the insurance provider did not contest the 2009 claim (although it suspected fraud).

The court ruled the prosecutor would be allowed to put on evidence of the 2009 claim, including the video, to establish intent, common plan, or knowledge, but she had to inform the jury the claim was paid. The court, however, ruled the prosecutor could not argue there was fraud in the 2009 claim. Natividad appealed his conviction because of this ruling. However the court of Appeal affirmed the conviction in the unpublished case of People v Natividad.

The Court agreed the trial court erred by admitting other acts evidence. There are similarities between the 2009 and 2014 claims were Natividad injured his right hand in the jail while booking an arrestee. But they differ in one important respect.

In 2009, the insurance company processed and settled his claim while in 2014 the insurance company denied his claim. The admission of Natividad’s prior legitimate 2009 workers compensation claim had little probative value. At most it indicated he knew how to file a claim.

It’s prejudicial value, on the other hand, was significant. Even valid claims of workplace injuries are viewed with suspicion. Here, the 2009 claim unfairly suggested a pattern despite the fact there was no indication there was anything improper about the that claim. A negative stigma attaches generally to workers compensation claims, and subsequent claims give rise to even greater doubts and misgivings. Repeat claimants can easily be perceived as not wanting to work and as using such an injury as an excuse to get out of work

But he was not prejudiced by this error. The trial court’s admission of evidence of the 2009 claim was harmless pursuant to People v. Watson (1956) 46 Cal.2d 818, 836. . "It was not reasonably probable that had the trial court excluded evidence of the 2009 claim the result of the proceeding would have been different." ...
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/ 2019 News, Daily News
New York’s insurance regulator has formally notified a group of opioid manufacturers and distributors that it will launch a civil enforcement action against them for contributing towards a rise in health insurance premiums in the state, said two sources familiar with the matter.

Reuters reports that the New York State Department of Financial Services has sent letters to around 23 opioid manufacturers and distributors, notifying them that the regulator would begin the process to hold a hearing on the issue in an administrative proceeding, the sources said.

New York Governor Andrew Cuomo said in September the state would launch a legal action against drug companies and distributors that sell opioids in order to recoup about $2 billion in insurance rate increases that were passed on to New York consumers because of opioids.

Premiums surged because insurers had to cover prescription costs and opioid-related issues such as emergency room visits and addiction treatments, Cuomo had said.

The two sources familiar with the NYDFS action declined to name the companies to which the letters were sent.

Cuomo, on Sept. 10, published a list of entities the regulator had subpoenaed here including Purdue Pharma Inc, Johnson & Johnson, Teva Pharmaceuticals USA Inc, McKesson Corp, AmerisourceBergen Drug Corp and Janssen Pharmaceuticals Inc.

"Janssen acted as a responsible manufacturer and seller of its opioid pain medications, which play in an important role in the lives of patients with severe pain," the company said. Other companies mentioned above could not immediately be reached for comment.

A letter of intent to bring an enforcement action follows a determination by the regulator that there is sufficient evidence to bring the case, the sources said.

The entities will first have an opportunity to try to convince the regulator not to start the proceeding. The case would be heard by a hearing officer within the agency.

Funds that New York would collect from the suits would be returned to consumers, possibly in the form of rebates of lower insurance premiums, NYDFS Superintendent Linda Lacewell has said ...
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/ 2019 News, Daily News
Francisco Gonzales formerly worked as a driver for San Gabriel Transit, Inc. (SGT), a company that coordinates with public and private entities to arrange transportation services for passengers.

In February 2014, Gonzales filed this putative class action seeking to represent over 550 drivers engaged by SGT as independent contractors from February 2010 to the present.

Among other things, Gonzales alleged that by misclassifying drivers as independent contractors, SGT violated various provisions of the Labor Code and the Industrial Welfare Commission’s (IWC) wage orders, particularly Wage Order No. 9-2001 (codified at Cal. Code Regs., tit. 8, § 11090 [Wage Order No. 9]), which governs the transportation industry, and engaged in unlawful business practices under Business and Professions Code section 17200 (17200).

The trial court did not evaluate individual causes of action. Rather, analyzing the action as a whole, premised on terms contained in several lease agreements in effect during the class period, the court found that Gonzales failed to demonstrate the requisite community of interest or typicality among SGT drivers under the then-prevailing legal test, and denied the motion for class certification.

While this appeal was pending, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex), in which it adopted the "ABC test" used in other jurisdictions to streamline and provide consistency in analyzing the distinction between employees and independent contractors for purposes of wage order claims.

The Court of Appeal reversed in the published case of Gonzales v San Gabriel Transit, Inc. Because the trial court did not have the benefit of the Dynamex decision, it remand the matter with directions.

It conclude that: (1) the ABC test adopted in Dynamex is retroactively applicable to pending litigation on wage and hour claims; (2) the ABC test applies with equal force to Labor Code claims that seek to enforce the fundamental protections afforded by wage order provisions; and (3) statutory claims alleging misclassification not directly premised on wage order protections, and which do not fall within the generic category of "wage and hour laws," are appropriately analyzed under what has commonly been known as the "Borello" test (referring to S.G. Borello and Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello)).

On remand, the trial court shall: (1) evaluate which alleged Labor Code claims enforce wage order requirements, and which do not; (2) as to the Labor Code claims that enforce wage order requirements, apply the ABC test as set forth in Dynamex to determine whether the requirements of commonality and typicality for purposes of certification of a class action are satisfied; (3) as to the Labor Code claims that do not enforce wage order requirements, apply the Borello test to determine whether the requirements of commonality and typicality for purposes of certification of a class action are satisfied; (4) as to the derivative claim under section 17200, apply the ABC or Borello test as appropriate for the underlying alleged unlawful business practice; and (5) in the event the court determines class certification is appropriate for any claims, complete the analysis by determining whether proceeding as a class action would be superior to alternative methods of adjudication.
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/ 2019 News, Daily News
Google is engaged in a secret project with one of the country's largest health-care systems to collect and crunch the detailed personal health information of millions of Americans across 21 states, according to people familiar with the matter and internal documents reported by Morningstar.

The initiative, code-named "Project Nightingale," appears to be the largest in a series of efforts by Silicon Valley giants to gain access to personal health data and establish a toehold in the massive health-care industry. Amazon.com Inc., Apple Inc. and Microsoft Corp. are also aggressively pushing into health care, though they haven't yet struck deals of this scope.

Google began the effort last year with St. Louis-based Ascension, the second-largest health system in the U.S., with the data sharing accelerating over this summer and fall, the documents show.

The data involved in Project Nightingale pertains to lab results, doctor diagnoses and hospitalization records, among other categories, and amounts to a complete health history, including patient names and dates of birth.

Neither patients nor doctors have been notified. At least 150 Google employees already have access to much of the data on tens of millions of patients, according to a person familiar with the matter and documents.

Some Ascension employees have raised questions about the way the data is being collected and shared, both from a technological and ethical perspective, according to the people familiar with the project, but privacy experts said it appeared to be permissible under federal law. That law, the Health Insurance Portability and Accountability Act of 1996, generally allows hospitals to share data with business partners without telling patients, as long as the information is used "only to help the covered entity carry out its health care functions."

Google in this case is using the data, in part, to design new software, underpinned by advanced artificial intelligence and machine learning, that zeroes in on individual patients to suggest changes to their care. Staffers across Alphabet Inc., Google's parent, have access to the patient information, documents show, including some employees of Google Brain, a research science division credited with some of the company's biggest breakthroughs.

A Google spokeswoman said the project is fully compliant with federal health law and includes robust protections for patient data. An Ascension spokesman had no immediate comment.

Google and nonprofit Ascension have parallel financial motives. Google has assigned dozens of engineers to Project Nightingale so far, without charging for the work, because it hopes to use the framework to sell similar products to other health systems. Its end goal is to create an omnibus search tool to aggregate disparate patient data and host it all in one place, documents show.

The project is being developed under Google's cloud division, which trails rivals like Amazon and Microsoft in market share. Google CEO Sundar Pichai has said repeatedly this year that finding new areas of growth for cloud is a priority.

Ascension, a Catholic chain of 2,600 hospitals, doctors' offices and other facilities, aims in part to improve patient care. It also hopes to mine data to order up more tests or determine where it might be able to make more money from an individual patient, documents show. Ascension is also eager for a faster system than its existing decentralized electronic record-keeping network.

Google, like many of its Silicon Valley peers, has at times drawn criticism for not doing enough to protect user privacy. Its YouTube unit agreed in September to pay $170 million in fines and make changes to its practices in response to complaints that it illegally collected data on children to sell ads. YouTube neither admitted nor denied wrongdoing.

Last year, The Wall Street Journal reported that Google hid a flaw that exposed hundreds of thousands of birth dates, contact information and other personal data of subscribers in its now-defunct social-networking website Google Plus, in part because of fears that the incident could trigger regulatory scrutiny. Google said at the time it went beyond legal requirements in determining not to inform users ...
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/ 2019 News, Daily News
Not many years ago, applicant attorneys aggressively filed workers' compensation claims for professional athletes in California, alleging that the long term effects of head injury while playing caused a form of dementia known as CTE. Later, many thousands of those athletes were involved in major civil litigation which were consolidated in a Pennsylvania federal court and then settled by the NFL. Ultimately, in 2013, the California legislature passed AB1309 which limited claims for out-of-state athletes.

The subject of head trauma and athletes involved in hard-hitting contact sports has become a hot button topic among both the scientific and athletic communities in recent years. Many now believe that these athletes are putting themselves at a much greater risk of serious neurological and cognitive problems later in life, but a recent study has come to contradictory conclusions.

A study by researchers from the University at Buffalo compared former National Football League and National Hockey League athletes with current participants in non-contact sports. Due to recent research into chronic traumatic encephalopathy (CTE), a neurodegenerative disease caused by repeated head injuries, the researchers expected to find much higher rates of early-onset dementia among retired professional sports players. However, the study revealed no evidence of early-onset dementia in the retired players.

The study assessed 21 former players for the NFL’s Buffalo Bills and the NHL’s Buffalo Sabres based on neuropsychological measures associated with mild cognitive impairment (MCI) and executive function.

Many players who suffer from CTE also suffer from early-onset dementia, but complicating matters is the fact that CTE can only be diagnosed after death through an autopsy. There is also evidence that it’s possible to suffer from CTE brain damage without any clinical symptoms.

Seeking to discover just how prevalent CTE is in athletes, the researchers tested the 21 professional athletes for signs of MCI using a series of comprehensive neurological assessments. These assessments included questionnaires plying the participants with questions about personality and executive function.

Researchers also scanned each athlete’s brain to look for signs of MCI, which is thought to be a precursor of early-onset dementia. The participants were asked about their diet, lifestyle, drug and alcohol use, and common cardiovascular problems. They gave blood samples to test for cholesterol levels, and were given thorough physical exams.

Researchers then compared the professional athletes’ results to a control group of 21 amateur participants in non-contact sports such as swimming, cycling, and running. Surprisingly, they found little to no difference between the variable group and the control group in cognitive ability, memory, and executive function.

The largest differences in health between the pro hockey and football players and the non-contact athletes were that the professional players had significantly higher risks for obesity, chronic pain, orthopedic surgeries, and severe sleep or anxiety problems. But, those differences were mostly attributed by the research team to overall health differences among the two groups. The non-contact sport athletes were considerably healthier, more educated, and weighed less than the retired pro athletes.

Leddy and his co-author Barry Willer have long been known for their research on concussions, CTE, and early-onset dementia. They developed a new recovery method for concussions that assists concussion sufferers in becoming more active after only a relatively brief rest period.

The study is published in the Journal of Head Trauma Rehabilitation, the official journal of the Brain Injury Association of America ...
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/ 2019 News, Daily News
Insurance Companies and Self-Insureds that process claims for workers’ compensation, liability and no-fault claims (Primary Plans) involving Medicare beneficiary claimants need a better way to obtain information about Medicare Advantage and Part D Drug Plans that may have a claim for conditional payment reimbursement.

Numerous lawsuits have been filed across the Country demanding double damages for failure to reimburse Medicare Advantage and Part D Drug Plans.

These Private Medicare Plans advocate that they have the same recovery rights as traditional Medicare. Thus far, they have convinced two U.S. Court Circuits (3rd and 11th) that they are correct.

For Alabama, George, Florida, Delaware, Pennsylvania and New Jersey, Primary Plans are challenged to find out the identity of Private Medicare Plans at time of settlement. There is no central database for this information that is available. Consequently, they must rely on Claimants and their attorneys for the information which prove unreliable leading to costly lawsuits.

The solution to all of this may be a simple piece of legislation pending in both houses of Congress (H.R. 1375 and S. 1989).

The Provide Accurate Information Directly (PAID Act) aims to address current challenges claims payers have in determining Part C and Part D enrollment with identifying potential reimbursement claims.

Senate Bill 1989, which is identical to the House version, proposes that the Centers for Medicare and Medicaid (CMS) expand its Section 111 Query Process to identify whether an individual is, or during the preceding three-year (3) period, was enrolled in Medicare Part C (Medicare Advantage) and/or Medicare Part D (Prescription Drugs) plan, and provide the name and address of each plan identified during the preceding three year (3) period.

As with the House bill, Senate Bill 1989 does not require CMS to also return information on an individual’s Medicaid enrollment which was previously included in a prior version of the PAID Act introduced in the last Congressional session.

The legislation, initially introduced in the 115th Congress, has been updated to eliminate Medicaid references from the bill at the request of CMS through technical assistance. In December 2018 CBO scored the legislation as saving $25 million.

Passage of the PAID Act will allow settling parties to repay MSP amounts, and allow for the coordination of benefits, by requiring CMS to share the needed information ...
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/ 2019 News, Daily News
A Reuters investigation concluded that judges regularly allow information pertinent to public health and safety to be filed under seal, even though court documents are, by law, presumed to be public. In nearly all jurisdictions, judges are required to provide an on-the-record rationale for allowing litigants to file information under seal - to protect trade secrets, for example, or an individual’s medical records - but they rarely do that.

In its analysis, Reuters found that information pertinent to public health and safety was filed under seal in 55 of the 115 biggest product liability cases consolidated in federal courts over the past 20 years. These mega-cases, known as multidistrict litigation (MDL), involved products used by millions of consumers.

The secrecy exacts a heavy toll. In just a handful of cases Reuters analyzed, hundreds of thousands of people were killed or seriously injured by allegedly defective products - including cars, drugs and guns - after judges allowed litigants to file under seal evidence that could have alerted consumers and regulators to potential danger.

It’s a measure of their role in maintaining court secrecy that in nearly all of the 55 big cases, it was plaintiff lawyers who filed the information under seal. That’s because of the way secrecy is baked into the process early on.

During pretrial discovery, when the opposing sides request information from each other to prepare their cases, the defendant usually won't give plaintiffs any information until they agree to a protective order. In theory, these agreements are meant to keep under wraps potentially damaging proprietary or personal information. But in many cases, nearly everything ends up being stamped "confidential," and plaintiff lawyers often just agree to the secrecy without complaint.

Later, when plaintiff lawyers begin filing motions or presenting their cases in court, the standard for imposing secrecy moves higher. Material obtained through discovery that is later submitted as evidence becomes part of the court record; as a matter of law, litigants must provide a reason for submitting such evidence under seal, and the judge must approve.

In most of the big MDLs, however, plaintiff attorneys actually cited the defense’s earlier claims of confidentiality to justify filing evidence under seal. Since judges rarely ask for a more specific rationale for the secrecy, documents marked as confidential remain so.

That’s true when the parties settle, which is how most product liability cases end. It can also be true after a jury decides in favor of the plaintiff. Sometimes, plaintiff lawyers even agree to keep evidence confidential that has already been aired in open court in other cases.

Lawyers who do fight secrecy seldom succeed. They challenged defendants’ claims of confidentiality for material relating to public health and safety in 23 of the 55 big cases Reuters analyzed. Judges nearly always refused to unseal the evidence.

Yet potentially harmful flaws in many products remain secret years after the first lawsuits are filed. Overly broad protective orders are a big part of the problem, legal experts and plaintiff lawyers said. In 45 of the 55 big MDLs Reuters analyzed, the protective order allowed most any document to be marked as confidential ...
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/ 2019 News, Daily News