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CWCI Studies Low-Volume – But High-Cost Driver Drugs

Part II of a California Workers’ Compensation Institute research series on low-volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs, three Opioids, and three Antidepressants that represent a relatively small share of the prescriptions within their therapeutic drug group, but due to high average reimbursements, have become cost drivers, consuming a disproportionate share of the payments.

The report reveals that Dermatologicals were the fourth most prevalent drug category in 2021, with 9.3% of the workers’ comp prescriptions, but ranked second (behind Anti-Inflammatories) in total drug spend, consuming 17.3% of all prescription drug payments. That was up from 12.8% in 2012, which the study ascribes to increased utilization and the emergence of high-priced topical analgesics. Diclofenac sodium topicals jumped from 0.5% of all workers’ comp prescriptions in 2012 to 5.4% in 2021 – fourth among all drugs dispensed that year, and they represented 58.1% of the 2021 Dermatological prescriptions, but with inexpensive generics widely available, their average reimbursement was a relatively low $65, so they consumed only 23.5% of the Dermatological dollars. In contrast, the study notes three other low-volume/high-priced drugs that have become Dermatological cost drivers:

– – Diclofenac sodium and adhesive sheets (dispensed as Xrylix kits, in 2021 these kits accounted for just 0.3% of the Dermatological prescriptions, but with an average payment of $4,126, they consumed 7.2% of the dermatological drug spend).
– – Lidocaine/menthol (this drug was dispensed in various forms, but NuLido gel and Terocin patches were key cost drivers. Lidocaine/menthol represented only 1% of the Dermatologicals dispensed in 2021, but at an average of $1,050 per prescription, it accounted for 6.2% of the Dermatological payments.
– – Diclofenac epolamine (dispensed as Flector patches at an average of $570 per prescription, or as generic equivalents at an average of $577, diclofenac epolamine comprised just 1.7% of the 2021 Dermatological prescriptions, but 5.9% of the payments within the group).

Opioid use in workers’ comp has been falling for more than a decade and with the adoption of Opioid and Pain Management Treatment Guidelines in late 2017 and a Formulary in 2018, Opioids’ share of the prescriptions continued to drop, falling to 9.4% in 2021 (down from 29.4% in 2012), while their share of the total drug spend fell to 5.8% (down from 26.7% a decade earlier). At the same time, the mix of Opioids used to treat injured workers shifted. The study noted three low-volume/high-priced Opioids that have become cost drivers within their group:

– – Buprenorphine, typically used to treat Opioid Use Disorder for patients in Medication-Assisted Treatment plans, in 2021, it accounted for 5.2% of the workers’ comp Opioids, and with an average payment of $363, it consumed 35.4% of the total Opioid reimbursements – more than any other Opioid.
– – Tapentadol HCl, used when other pain medications do not work well or cannot be tolerated, but only available as a brand drug (Nucynta or Nucynta Extended Release) it represented just 0.6% of the Opioid prescriptions, but at $590 per prescription, it accounted for 6.4% of the total Opioid drug spend.
– – Oxycodone, prescribed for moderate to severe pain, is available in a variety of generic and brand formulations, including extended-release and abuse-deterrent varieties. In 2021, 5.9% of Opioid prescriptions were for oxycodone, and at $145 per prescription, it consumed 16.0% of all Opioid payments.

The top four Antidepressants dispensed to injured workers in 2021 represented nearly 2/3 of the Antidepressants used, but all four were relatively low-cost drugs, so they accounted for only 42.5% of the payments in this drug group. In contrast, the study identified three low-volume/high-priced drugs that consumed a disproportionate share of the Antidepressant drug spend:

– – Vortioxetine HBr, used to treat Major Depressive Disorder, remains under patent and is only available as brand-name Trintellex. Available in 5, 10, and 20 mg tablets, this drug carries a black box warning noting an increased risk of suicidal thoughts and behaviors. In 2021, only 1.0% of the Antidepressant prescriptions in California workers’ compensation were for Vortioxetine HBr, but with an average reimbursement of $476, this drug comprised 12.4% of all Antidepressant payments.
– – Desvenlafaxine, an extended-release tablet that comes in various strengths, is used to treat major depression. It is available as a brand drug (Khedezla, Pristiq), with average payments as high as $642 per prescription, but since the introduction of generic versions in 2017, brand versions have declined to 14 to 15% of the prescriptions. Payments for generic desvenlafaxine averaged $58 to $66 from 2019 to 2021, which helped drive down the average reimbursement for this drug. In 2021, desvenlafaxine represented 1.0% of workers’ comp Antidepressants, but the average payment was still $131, so it accounted for 3.5% of the Antidepressant payments.
– – Bupropion HCl is used to treat depression, anxiety, and other mood disorders, and to aid smoking cessation. Available as a brand drug (Wellbutrin, including an extended-release version that tends to be very expensive), or in generic versions, which accounted for 98% of the Bupropion HCl dispensed to injured workers in 2021. Unlike generics, where the average payment declined from $121 in 2012 to $25 in 2021, over that same decade average reimbursements for brand versions of bupropion HCl increased nearly 10-fold from $267 to $2,614. The dominance of generic buproprion HCl has helped contain the total payments for this drug, but the 2% of the prescriptions dispensed as high-cost brand drugs drove the average payment up to $77 in 2021 — more than three times the $25 average paid for generics. As a result, bupropion HCl, which accounted for 7.6% of the Antidepressant prescriptions in 2021, consumed 16.3% of the Antidepressant payments.

CWCI has published more details and analyses on these drugs in a Spotlight Report, Cost-Driver Medications in the Top California Workers’ Comp Therapeutic Drug Groups: Part II, Dermatologicals, Opioids, and Antidepressants. Institute members and subscribers can log on to and access the report under the Research tab, others can purchase a copy from the CWCI’s online store. Part III of CWCI’s research on low-volume/high-cost medications will focus on medications found in the Musculoskeletal and Ulcer drug categories.

Sunnyvale Company Announces AI Underwriting for Work Comp

Mulberri is a software company that provides a cloud-based platform for small and medium-sized businesses (SMBs) to purchase and manage insurance.The company was founded in 2016 by Hamesh Chawla and is headquartered in Sunnyvale, California.

Mulberri’s platform uses artificial intelligence (AI) to automate the insurance buying process, making it easier and faster for SMBs to find the right coverage at the best price. The company’s customers include businesses in a variety of industries, including retail, healthcare, and technology.

Mulberri just announced the launch of its Risk Engine, a first of its kind risk assessment offering for workers compensation underwriters. The Risk Engine, which is already being deployed by customers like Paychex’s PEO department, uses machine learning models to put the information underwriters need at their fingertips, making it possible to make fast, accurate decisions.

Workers’ comp is a multi-billion-dollar market, but most existing underwriting processes have not taken full advantage of the power of data, especially AI. Mulberri designed its Risk Engine to meet the needs of underwriters and their customers, extending Mulberri’s existing portfolio of insurance products for payroll businesses, HR providers, brokers and small-medium businesses.

“Our mission from day one has been to leverage technology to complement underwriters’ judgment so that the business insurance process can be simple, efficient, and transparent,” said Hamesh Chawla, CEO and cofounder of Mulberri. “The Risk Engine is a transformative step forward.”

Mulberri trained its Risk Engine to determine factors that impact claims based on millions of pieces of information including firmographic information, previous loss experience and workers compensation information. The cloud-based product allows intuitive access to predictions on demand from any SaaS application as well as easy deployment. It also enables users to analyze and score prospects one at a time or in bulk. All data is obfuscated, so PII remains safe.

It allows underwriters to make predictions for:

– – Claim Propensity – Likelihood of an insured filing a claim in twelve months
– – Claim Frequency – Claim repetition in twelve months
– – Claim Severity – Severity of the claim should it occur
– – Loss Ratio – Likelihood of the loss ratio getting worse than a profitable level

Mulberri has won the following awards from Insurtech:

– – 2023 Insurtech Innovation Award for Best Insurtech Solution for PEOs and Brokers
– – 2023 Insurtech Rising Star Award
– – 2023 Insurtech Best of Show Award

To learn more about the Mulberri Risk Engine and get a demo , sign up at

Arbitrator Awards Humana $642M in Walgreens Pricing Dispute

In 2019 , health insurance giant Humana filed an arbitration claim against Walgreens, a major drugstore chain, alleging that Walgreens had submitted millions of falsely-inflated prescription drug prices for more than a decade. This case arises from Walgreens’ longstanding contracts with Humana to reimburse Walgreens for prescription drugs it dispensed at its pharmacies to people insured by Humana.

The dispute centered on the way that Walgreens calculates the “usual and customary” price of prescription drugs. Humana alleged that Walgreens had been inflating these prices in order to overcharge the insurer. Walgreens denied these allegations and said that it was simply following the terms of its contracts with Humana.

The arbitrator was Elliot Gordon, a retired federal judge. After a lengthy hearing, the arbitrator ruled in favor of Humana and awarded the insurer $642 million in damages.

Walgreens has filed a petition in federal court to vacate the arbitration award, arguing that the arbitrator “rewrote” its contracts with Humana and used a flawed model to assess alleged damages. Walgreens acknowledges that the bar for vacating an arbitration award is high. But they say “it is not insurmountable, however.”

According to the Federal Arbitration Act (FAA), a party can appeal an arbitration award if the original award contains material and prejudicial errors of law of such a nature that it does not rest upon any appropriate legal basis, or is based upon factual findings clearly unsupported by the record; or if the original award is subject to one or more of the grounds set forth in Section 10 of the FAA for vacating an award.

Walgreens also claims that law firm Crowell & Moring should not have been allowed to represent Humana after previously advising Walgreens years earlier on drug pricing matters at the heart of Humana’s 2019 arbitration. Crowell has denied any conflict of interest in representing Humana against the law firm’s former client Walgreens2.

Walgreens last year sued Crowell & Moring in District of Columbia Superior Court to immediately stop the large law firm from representing insurer Humana Health Plan Inc in the arbitration with Walgreens over drug pricing, contending Crowell, as its former firm, has violated its ethical duty. A judge in May 2021 ruled that Walgreens’ push for a preliminary injunction against Crowell belonged in front of the arbitrator. Walgreens appealed, and the drug-pricing arbitration moved ahead with Crowell remaining as counsel to Humana.

Washington, D.C.-based Crowell has denied any conflict of interest in representing Humana against the law firm’s former client Walgreens. A spokesperson for Crowell on Monday in a statement reviewed by Reuters called Walgreens’ ethics claim “meritless” and said the firm was “confident that the arbitrator’s thorough and well-reasoned award will be affirmed.”

Walgreens also argues that the arbitrator’s award is “manifestly unjust” and should be vacated on that ground as well.

Humana has responded to Walgreens’ petition, arguing that the arbitrator’s award should be confirmed. Humana argues that the arbitrator correctly found that Walgreens breached its contracts and that the damages award is supported by the evidence. Humana also argues that the arbitrator did not abuse its discretion and that the award is not manifestly unjust.

The outcome of the case could have a major impact on the pharmaceutical industry and the cost of prescription drugs.If the arbitrator’s award is upheld, it could set a precedent that would make it more difficult for pharmacies to inflate prescription drug prices. This could lead to lower prices for patients and could help to reduce the overall cost of healthcare.

The outcome of the case is also significant because it could impact the way that arbitration is used to resolve disputes in the pharmaceutical industry.

FTC Targeting Drugmaker Mergers and PBM Industry Middlemen

The Federal Trade Commission is seeking to block biopharmaceutical giant Amgen Inc. from acquiring Horizon Therapeutics plc, saying the deal would allow Amgen to leverage its portfolio of blockbuster drugs to entrench the monopoly positions of Horizon medications used to treat two serious conditions, thyroid eye disease and chronic refractory gout.

The FTC filed a lawsuit in federal court this month to block the transaction, saying it would enable Amgen to use rebates on its existing blockbuster drugs to pressure insurance companies and pharmacy benefit managers (PBMs) into favoring Horizon’s two monopoly products – Tepezza, used to treat thyroid eye disease, and Krystexxa, used to treat chronic refractory gout. Neither of these treatments have any competition in the pharmaceutical marketplace.

Rampant consolidation in the pharmaceutical industry has given powerful companies a pass to exorbitantly hike prescription drug prices, deny patients access to more affordable generics, and hamstring innovation in life-saving markets,” said FTC Bureau of Competition Director Holly Vedova. “Today’s action – the FTC’s first challenge to a pharmaceutical merger in recent memory – sends a clear signal to the market: The FTC won’t hesitate to challenge mergers that enable pharmaceutical conglomerates to entrench their monopolies at the expense of consumers and fair competition.”

The proposed acquisition is the largest pharmaceutical transaction announced in 2022. Given how central protecting and growing Tepezza and Krystexxa monopoly revenues are to the deal valuation Amgen calculated for Horizon, Amgen has strong incentives post-acquisition to raise Tepezza and Krystexxa rivals’ barriers to entry or dissuade them from competing as aggressively if and when they gain FDA approval, the agency argues. Amgen said it “remains committed” to completing the Horizon acquisition.

This action dovetails with other ongoing work at the Commission in response to widespread complaints about rebates and fees paid by drug manufacturers to PBMs and other intermediaries to favor high-cost drugs at the expense of lower cost drugs. As the Commission explained in a policy statement issued in June 2022, these financial relationships create numerous conflicts of interest and can shift costs and misalign incentives in a way that stifles competition from lower-cost or higher-quality drugs, thereby harming patients, doctors, health plans, and competition. The FTC’s market inquiry examining the business practices of PBMs is also ongoing.

California-based Amgen is one of the world’s largest biopharmaceutical companies, with global sales of about $24.8 billion and a product portfolio of 27 approved drugs, including blockbuster drugs Enbrel (for rheumatoid arthritis), Otezla (psoriasis), and Prolia (osteoporosis). The FTC said that “Amgen has for years built its pharmaceutical portfolio through acquisitions, thereby increasing its leverage with the insurers and PBMs that negotiate reimbursement for its products.”

Horizon, based in Dublin, Ireland and Deerfield, Illinois, is a global biotechnology company with about $3.6 billion in sales that focuses on medicines treating rare, autoimmune, and severe inflammatory diseases. Horizon markets and distributes 11 drug products in the United States, including Tepezza and Krystexxa.

In securities filings, Horizon has boasted that its Tepezza “has no direct approved competition,” and that Krystexxa “faces limited direct competition.” Because of this, Horizon charges extremely high prices for those medications – approximately $350,000 for a six-month course of treatment of Tepezza and approximately $650,000 for an annual supply of Krystexxa.

The FTC claims that Amgen has a history of leveraging its broad portfolio of blockbuster drugs to gain advantages over potential rivals. In particular, the company has engaged in cross-market bundling, which involves conditioning rebates (or offering incremental rebates) on products such as Enbrel in exchange for giving Amgen drugs preferred placement on the insurers’ and PBMs’ lists of covered medications in different product markets.

The value of the rebates that Amgen can offer on its high-volume drugs as part of its cross-market bundles may make it difficult, if not impossible, for smaller rivals who are developing drugs to compete against Tepezza and Krystexxa to match the level of rebates that Amgen would be able to offer.

By substituting Amgen, with its portfolio of blockbuster drugs and significant contracting leverage, for Horizon, the FTC said the deal could give the merged firm the ability and incentive to entrench Tepezza’s and Krystexxa’s monopolies through its multi-product contracting strategies. This could effectively deprive patients, doctors, and health plans from the benefits of competition and access to critical new options for treatment of thyroid eye disease and chronic refractory gout.

The Commission vote to authorize staff to seek a temporary restraining order and preliminary injunction was 3-0.

Last year the FTC launched an inquiry into the prescription drug middleman industry, requiring the six largest pharmacy benefit managers to provide information and records regarding their business practices. The agency’s inquiry will scrutinize the impact of vertically integrated pharmacy benefit managers on the access and affordability of prescription drugs. As part of this inquiry, the FTC will send compulsory orders to CVS Caremark; Express Scripts, Inc.; OptumRx, Inc.; Humana Inc.; Prime Therapeutics LLC; and MedImpact Healthcare Systems, Inc.

May 15, 2023 – News Podcast

Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Silicon Valley AI Company Makes InsurTech Top 100 List. Screenwriters Union Fighting Off Industry Wide AI Adoption. Specific Findings Required for Ordering One Carrier to Pay CT Benefits. SJDB Voucher Not Required in Total Disability Case. Rise in Occupational Silicosis Triggers 17 L.A. Lawsuits and Cal/OSHA Action. Former Modesto Doctor Pleads Guilty to Illegally Prescribing Opioids. NLRB Reverses Discipline Rules for Egregious Protected Activity Misconduct. Proposed Amendments to QME Regulations in Final Stages. $22M Donation to UCSD Health for AI Healthcare Launch. Rochelle Walensky Abruptly Resigns as C.D.C. Director.

Worker’s FEHA Action Rejected in Case Arising Out of Flu Vaccine Refusal

Cedars-Sinai Medical Center operates a nonprofit academic medical center in Los Angeles. Its total workforce exceeds 15,000 employees, including approximately 2,100 doctors and 2,800 nurses. Together, these employees provide medical care to thousands of patients per day and perform related administrative and operational functions.

Deanna Hodges began working for Cedars in 2000. Throughout her tenure, she worked in an administrative role with no patient care responsibilities. Her office was in an administration building Cedars owned about a mile from the main Cedars medical campus, though she occasionally visited the main medical campus in her capacity as an employee. A shuttle bus ran continuously between the main medical campus and the administration building, and many Cedars employees traveled between the two sites on a daily basis.

In 2007, Hodges was diagnosed with stage III colorectal cancer. She stopped working for a year and a half to undergo treatment, which included chemotherapy. The treatment was effective to rid her of cancer but left her with lingering side effects. These included unspecified allergies, a weakened immune system, and neuropathy – damage to the nerves resulting in an ongoing “tingling sensation” in her fingers and toes. None of these side effects limited her ability to perform her job functions, and she successfully returned to work for Cedars in 2009.

As an administrative employee without direct patient contact, plaintiff was under no obligation to get a flu vaccine when she was hired or when she returned from cancer treatment in 2009. This changed in 2017. That September, Cedars announced a new policy requiring all employees, regardless of their role, to be vaccinated by the beginning of flu season. This was the latest expansion to Cedars’s longstanding efforts to limit employee transmission of flu, which had become more urgent in recent years following multiple patient deaths relating to flu.

The expanded 2017 policy aligned with the recommendation of the United States Department of Health and Human Services Centers for Disease Control and Prevention (CDC) “that all U.S. health care workers get vaccinated annually against influenza.”

Her doctor wrote a note recommending an exemption for various reasons, including her history of cancer and general allergies. None of the reasons was a medically recognized contraindication to getting the flu vaccine.

Cedars denied the exemption request. Hodges still refused to get the vaccine. Cedars terminated her. Hodges sued Cedars for disability discrimination. Her complaint contained six causes of action, each alleged as a violation of FEHA or the public policy it manifests.

The trial court granted Cedars’s motion for summary judgment. The court of appeal affirmed in the published case of Hodges v. Cedars-Sinai Medical Center – B297864 (May 2023).

In her appellate briefing she identifies the elements of her prima facie discrimination claim as being those of a claim for physical disability discrimination. Citing Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344-345, a physical disability case which recites the elements of her prima facie claim as follows: “that she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations[;] and (3) was subjected to an adverse employment action because of the disability or perceived disability.”

Plaintiff argues her cancer history and neuropathy amount to a physical disability because they “make it impossible for her to work as she cannot work as she cannot get vaccinated. Her disabilities limited her ability to safely receive the vaccine.” To be clear, plaintiff admits her cancer history and neuropathy in no way otherwise limited her ability to work in 2017.

In moving for summary judgment, Cedars introduced evidence that plaintiff was not disabled and could not prove she was disabled. It offered official guidance from the CDC and testimony from Dr. Grein that there were only two medically recognized contraindications for getting the flu vaccine. None of the conditions listed on her exemption form were recognized contraindications for getting the flu vaccine.

The court of appeal concluded that “Judgment was proper on plaintiff’s disability discrimination cause of action because she failed to produce evidence sufficient to create a fact issue concerning an essential element of her prima facie case, i.e., her claimed disability or the perception by Cedars of disability. We therefore need not address the other elements of plaintiff’s prima facie case.”

Even if plaintiff had made a prima facie case for discrimination of any kind (e.g., physical disability, medical condition, or otherwise), summary adjudication of her disability discrimination cause of action would still have been proper because Cedars presented a legitimate, nondiscriminatory reason for her termination, and plaintiff fails to argue the reason was pretextual.

Handy Technologies Resolves Misclassification Clams for $6M

Handy Technologies, Inc., a company that offers in-house services through an app, has agreed to pay $6 million and enter into a permanent injunction to settle a worker protection lawsuit.

The San Francisco District Attorney’s Office and Los Angeles District Attorney’s Office alleged that the New York-based company unlawfully misclassified workers as independent contractors rather than employees in violation of California’s employment classification laws, including State Assembly Bill 5 (2019).

Handy, a company started by Harvard Business School classmates Oisin Hanrahan and Umang Dua in 2012, has scheduled home-cleaning and repair gigs for tens of thousands of workers in California, according to the San Francisco DA’s office.Handy refers to the workers who perform the cleaning and handyman services requested by customers as “Pros.”

As part of the judgment, which was recently filed in San Francisco Superior Court, Handy must pay $4.8 million in restitution to workers, which will cover over 25,000 California Pros who worked during the period of March 2017 to May 2023. Handy must also pay a civil penalty of $1.2 million for its unlawful practices.

With respect to Handy’s future treatment of Pros, Handy has agreed to a permanent injunction that will safeguard Pros from ongoing misclassification. In resolving this matter, Handy has made substantial changes to its business operations in order to no longer run afoul of California’s classification laws. These changes include that Pros can now set their own hourly pay rates and, after claiming jobs, Pros are now able to immediately contact customers to learn more about the requested service and negotiate its terms (like hours and pay) without being contractually bound to perform the work or penalized by Handy for rejecting the job.

As alleged in the case, for the period of time that Handy illegally misclassified Pros as independent contractors instead of employees, these workers were deprived of workplace benefits to which they were entitled. In the coming months, a claims administrator will ensure that California Pros who are eligible for restitution receive their respective distribution from the restitution funds.

Assistant District Attorney Stillman leads the office’s Workers’ Rights Unit and was supported in this case by Assistant District Attorney Angela Fisher and Paralegal Chloe Mosqueda, under the supervision of Assistant Chief District Attorney Matthew McCarthy of the White Collar Crime Division.

The Workers’ Rights Unit of the San Francisco District Attorney’s Office investigates and prosecutes legal violations committed by employers against workers. This innovative unit, one of the first of its kind in the nation, focuses on civil enforcement of workplace law through California’s Unfair Competition Law as well as crimes such as wage theft and labor trafficking.

FEHA Arbitrator Decisions are Final and Not Ordinarily Reviewable on Appeal

Elizabeth Castelo was employed by Xceed as its Controller and Vice President of Accounting. In November 2018, Xceed informed Castelo her employment would be terminated effective December 31, 2018. On November 19, 2018, the parties entered into an agreement entitled “Separation and General Release Agreement”, in which Xceed agreed to pay Castelo a severance payment in consideration for a full release of all claims, including “a release of age discrimination claims that she has or may have under federal and state law, as applicable.”

The release extended to all claims known and unknown “arising directly or indirectly from Employee’s employment with [Xceed] [and] the termination of that employment” including (among many other listed claims) “wrongful discharge[;] violation of public policy[;] . . . [and] violation of the California Fair Employment and Housing Act.” The parties agreed to waive the protections of Civil Code section 1542.

Castelo and Xceed signed the Separation Agreement on November 19, 2018. Attached as Exhibit A to the Separation Agreement was a document entitled “Reaffirmation of Separation and General Release Agreement” which was to be signed on the date of her separation, which was December 31, 2018.

It was undisputed Xceed management intended that Castelo would sign the Reaffirmation on the date of her separation. However, Castelo signed it on the same date she signed the main Separation Agreement, on November 19, 2018, and Xceed did nothing to correct that error. She was paid $137,334 for her signing this agreement as of the date of her separation.

Nonetheless Castelo sued her former employer Xceed Financial Credit Union (Xceed) for wrongful termination and age discrimination in violation of the Fair Employment and Housing Act (FEHA)

On October 3, 2019, the parties stipulated the action would be submitted to binding arbitration pursuant to an arbitration agreement executed in 2013. The court then dismissed the action without prejudice but retained jurisdiction to enter judgment on any arbitration award.

The matter was submitted to binding arbitration before Hon. Enrique Romero (ret.). Xceed filed a response to Castelo’s complaint alleging, among other things, Castelo’s action was barred by the release. Xceed also filed a cross-complaint and first amended cross-complaint, asserting claims for (1) breach of the Separation Agreement and Reaffirmation; (2) unjust enrichment; (3) reformation; (4) declaratory relief; and (5) promissory estoppel.

The arbitrator rejected Castelo’s assertion that since the release was signed on November 18, and that she was not wrongfully terminated until December 31, the release violated Civil Code section 1668, which prohibits pre-dispute releases of liability in some circumstances. The arbitrator granted summary judgment in favor of Xceed on the ground Castelo’s claims were barred by a release in her separation agreement.

Castelo moved to vacate the arbitration award, arguing the arbitrator exceeded his powers by enforcing an illegal release. The trial court denied the motion to vacate and entered judgment confirming the arbitration award. The Court of Appeal affirmed in the published case of Castelo v. Xceed Financial Credit Union – B311573 (May 2023).

The parties disagreed as to the proper scope of the court of appeal’s review. “Where, as here, an arbitrator has issued an award, the decision is ordinarily final and thus ‘is not ordinarily reviewable for error by either the trial or appellate courts.’ [Citation.] The exceptions to this rule of finality are specified by statute.

As relevant here, the [California Arbitration Act (CAA)] provides that a court may vacate an arbitration award when “[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.”

Castelo contends on appeal that the release, as interpreted and applied by the arbitrator, violates Civil Code section 1668 because it purported to release claims that accrued after Castelo signed the document. Castelo claims that the arbitrator exceeded his authority in giving effect to the illegal release and that this court must review the arbitrator’s and trial court’s decisions de novo.

The court of appeal noted that “Castelo does not claim the entire Separation Agreement and Reaffirmation is illegal. She does not seek to rescind the agreement and does not propose she return the $137,334.00 she received as consideration. Rather, she seeks to invalidate only the release, and only to the extent the arbitrator applied the release to claims that accrued on or after the date of its execution. Castelo’s argument that the arbitrator’s decision is subject to judicial review simply because the release is alleged to be illegal thus fails.”

The arbitrator explained the basis for this conclusion at length. Among other things, the arbitrator reasoned: “[T]he objectively-manifested intent of the Agreement was for Castelo to release all claims as of the date of signature (defined as the ‘Effective Date’ in the Agreement) in exchange for the payment of $5,000.00, and then extend that release through the Separation Date, December 31, 2018, for an additional $132,334.00.”

When the arbitrator then turned to whether the release, as interpreted, violated Civil Code section 1668 because Castelo executed the release before the claim for wrongful termination had fully accrued. “[¶] Even assuming arguendo that Castelo’s claim for wrongful termination did not accrue until her termination on December 31 and that the release affects the ‘public interest,’ this argument gains no traction.”

“The Agreement did not have, as its purpose, the immunization of Xceed from liability for a future violation of law. Rather, it clearly intended to, on December 31, 2018, effect the release of claims which had accrued on or before that date (i.e., an accrued claim for wrongful termination, and any other employment-related claim Castelo could bring). The Arbitrator declines to permit Castelo – who accepted the benefits under the Reaffirmation – to use her mistakenly-premature execution of the Reaffirmation to leverage this statute as a weapon against Xceed.”

Here the court of appeal noted “Castelo has not cited a single case in which section 1668 was invoked to invalidate a release of a claim that was known to the releasor at the time the release was executed and after a dispute had already arisen between the parties, and our review has revealed none.

The court of appeal concluded “the arbitrator did not commit clear legal error in enforcing the release and the trial court did not err in denying the motion to vacate. The arbitrator’s enforcement of the release did not violate section 1668 because Castelo signed the release after the allegedly discriminatory decision was made and after Castelo had already concluded that she was being wrongfully terminated because of age discrimination.”

NY 2022 Annual Workers’ Comp Fraud Report Shows 30% Increase

The mission of the Office of the New York State Workers’ Compensation Fraud Inspector General (WCFIG) is to conduct and supervise investigations of possible fraud and other violations of the laws, rules, and regulations pertaining to New York State’s workers’ compensation system.

WCFIG’s investigations are complex and often involve detailed record analysis and interviews of employers, employees, health care providers, and insurance carriers. These investigations can result in criminal referrals, arrests, and prosecutions, as well as recoveries of restitution. Lucy Lang was appointed in 2021 to serve as the New York State Workers’ Compensation Fraud Inspector General.

New York State Workers’ Compensation Law§ 136 mandates that the WCFIG submit a report to the Governor and the Chair of the Workers’ Compensation Board that summarizes the activities of the office for each calendar year.

In 2022, Inspector General Lang received 1,462 complaints. This represents an increase of more than 30 percent compared to 2021. The investigations conducted by WCFIG in 2022 led to 16 arrests, more than double the number of 2021 arrests. In 2022, nearly 2.7 million dollars in workers’ compensation fraud was uncovered. Additionally, WCFIG investigations that culminated in prosecutions reclaimed nearly five million dollars through fines and court orders for defrauded New York State agencies, insurance carriers, and employers.

WCFIG investigations usually begin with either the lodging of a complaint alleging workers’ compensation fraud or the identification of potential fraud by the Inspector General in the course of WCFIG’s pro-active initiatives.

Cases opened by WCFIG for full investigation are assigned to multi-disciplinary teams led by an investigative counsel who is assisted by investigators, investigative auditors, medical professionals, and computer forensic specialists. The investigations are supervised by a regional Deputy Inspector General and the Attorney-in-Charge of workers’ compensation fraud.

Acting under WCFIG’s statutory authority, the investigative teams may subpoena witnesses, take sworn testimony, and compel the production of relevant records.

In 2022, WCFIG’s investigations led to criminal charges against 16 people. Ten of these matters involved employer fraud, while the remaining six were examples of claimant fraud. Of these 16 arrests in 2022, nine resulted in convictions and seven matters are still pending prosecutions. In addition, several criminal prosecutions initiated in prior years concluded in 2022, resulting in criminal convictions of six people.

In 2022, WCFIG also continued its investigations of medical providers and other professionals whose job responsibilities are integral to the proper administration of the workers’ compensation system. These professionals may include treating and independent physicians, physician assistants, nurses, home health aides, law judges, attorneys, court reporters, and insurance professionals.

Provider cases are often complex and involve longterm investigations. As a result of WCFIG’s investigations in 2022, several matters were referred to both licensing agencies and the Health Provider Discipline Unit of the Workers’ Compensation Board resulting in the loss of certifications.

Several other investigations involving medical providers and other professionals are ongoing. One such notable case concerned a medical provider who orchestrated a scheme to defraud the State of New York and insurers by falsifying medical prognoses and records of patients, many of them New York State Corrections officers, to keep them out of work for extended periods of time on false or exaggerated workers’ compensation claims. The physician also billed for services that were either never provided or provided by unlicensed or untrained staff while the physician was out of the state.

WCAB Clarifies Employer’s Right to Depose Roomates in COVID Claim

Jason Labella claimed to have suffered injury in the form of COVID-19-related illness, as well as injury to the digestive, circulatory and nervous systems, while employed on December 6, 2021 as a pipe fitter by Marathon Petroleum.

The defendant filed petitions to compel the attendance at deposition of fact witnesses Briauna Hollingsworth, Marshall Mataalii, and Jenna Vasquez. They said that Labella and the fact witnesses lived at the same address, and that the depositions were necessary “to obtain details of Mr. LaBella’s possible exposure to COVID at home.”

The WCJ issued an order denying all three petitions to compel, stating, “this court is unaware of any basis or jurisdiction for compelling a non-party to appear for a deposition.”

The defendant’s Petition for Removal of the case was granted, and the WCAB rescinded the WCJ’s decision, and return this matter to the WCJ for further proceedings and decision in the case of Labella v Marathon Petroleum – ADJ15703855 (April 2023).

In his Petition, the defendant argued that pursuant to Labor Code section 5710, any party to a workers’ compensation proceeding may cause the deposition of witness.

Defendant cites to the WCAB panel decision in Terrones v. Remedy Temp (August 30, 2010, ADJ423557) [2010 Cal. Wrk. Comp. P.D. LEXIS 451] as authority for the proposition that the WCJ is empowered to compel to the deposition of a non-party witness. Defendant also claims a due process right to conduct discovery relevant to applicant’s claim of industrial injury, and that the WCJ’s order declining to compel the requested depositions results in a denial of that due process right.

The WCJ’s Report initially describes various procedural irregularities in the subpoenas issued by the defendant. The report then responds to defendant’s citation to the panel decision in Terrones v. Remedy Temp, supra, 2010 Cal. Wrk. Comp. P.D. LEXIS 451, observing that as a panel decision, the case is not mandatory authority.

The Report notes that Terrones involved nonparty employees of the defendant, as distinguished from the present matter in which the nonparty deponents are not employees of defendant, and are essentially strangers to the case. The WCJ observes that defendant has not established “good cause” for the deposition of the witnesses beyond their proximity in the same household as applicant, and that defendant may issue a subpoena for the witnesses to testify at trial.

The report concludes that “if defendant can show good service and ‘good cause ‘for taking the nonparties’ deposition…..this WCJ would consider whether or not an Order Compelling is appropriate.”

In response the WCAB panel noted that an adequate and complete record is necessary to understand the basis for the WCJ’s decision and the WCJ shall “…make and file findings upon all facts involved in the controversy[.]” (Lab. Code, § 5313; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 [2001 Cal.Wrk.Comp. LEXIS 4947] (Appeals Bd. en banc).

Here, the WCJ’s Order does not substantively address any issue beyond stating that there is no basis or jurisdiction to compel a non-party’s appearance at deposition. The record does not frame the issues, contains no exhibits, testimony or summary of evidence, and does not adequately explicate the basis for the order, To the extent that the WCJ’s report describes multiple other considerations, including whether the underlying subpoenas were procedurally defective, whether appropriate notice to the deponents was effectuated, whether the defendant’s petitions establish good cause for an order compelling, and whether a protective order or other limitations on the scope of the depositions is appropriate, the record is silent on these issues.”

“Accordingly, and pursuant to Hamilton v. Lockheed Corporation, supra, 66 Cal.Comp.Cases 473, we will rescind the October 25, 2022 Order, and return this matter to the trial level for further proceedings and for the creation of an adequate record.”

The WCAB pointed out several applicable code sections that provide guidelines for the taking of depositions, and that labor code section 5710 provides that attendance of witnesses and the production of records may be required.”

“Thus, while the Appeals Board may cause the taking of a deposition of a witness who happens to be an employee of a party, as was the case in Terrones v. Remedy Temp, supra, 2010 Cal. Wrk. Comp. P.D. LEXIS 451, the jurisdiction of the Appeals Board in such nonparty cases is not limited to the employees of parties.