Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: School District Recovers Interest, but not Attorney Fees from JPA, Cal/OSHA Sets “Uncertain” Footwear Standard for Home Depot, Another SJDB Voucher Fraud Arrest, South Bay Physician to Serve 2 Years in Prison, Owner of Roofing Company Faces Fraud Charges, Researchers Take Second Look at Chiropractic Care, Employers Use Proactive Approach to Musculoskeletal Distorders, CDI Rejects Berkshire Sale of Applied Underwriters, FAA Approves CVS to Deliver Pharmaceuticals by Drone, Workers’ Compensation to Be Transformed by Technology.
California workers’ compensation reforms enacted in 2003 and 2004 introduced a new process for approving medical services for injured workers, including the adoption of mandatory utilization review (UR) using evidence-based medicine guidelines.
Nearly a decade later, state lawmakers included reforms in SB 863 that added a new element to the medical service approval process, mandating the use of independent medical review (IMR) to resolve disputes over medical necessity.
The California Workers’ Compensation Institute’s latest study of California’s medical benefit delivery process expands on earlier analyses to determine the proportion of requested and/or delivered care that is approved versus denied after UR and IMR by service category.
Results show that 94.1 percent of services performed or requested from January 1, 2018 to October 31, 2018 were either approved (92.5 percent) or approved with modifications (1.6 percent), and 5.9 percent were denied, though outcomes varied by service category.
Evaluation and management services (e.g., office and emergency department visits, consultations) represented 29 .1 percent of the medical services in the 2018 data set and had an approval rate of 99.7 percent.
Surgery services were approved with or without modifications 94.9 percent of the time, while 89.4 percent of physical medicine services (physical therapy, chiropractic manipulation, and acupuncture) were approved with or without modifications.
The study also examines the impact of the UR provisions of 2016 legislation (SB 1160), which effective Janua1y 1, 2018, exempted certain services from prospective UR.
One goal of SB 1160 was to speed delivery of medical care, and while the study does find that the proportion of physical medicine services performed in the first 30 days increased from 2017 to 2018, there was no meaningful change in the delivery of other services. At the same time, the total volume of services performed in the first 60 days from injury did not increase and the denial rate for these services remained very low in both periods, ranging from 0.0 to 4.8 percent.
For the first time, the authors were able to estimate the proportion of UR denials and modifications that underwent IMR and found that an estimated 29 percent of UR modification and denial decisions were appealed and reviewed by an IMR physician.
However, an examination of the top law firms identified in the UR data reveals that the IMR referral rates by applicant attorneys varied greatly. Some attorneys submitted nearly all of their clients’ treatment modifications and denials to IMR, while others sent none.
The last section of the study continues the Institute’s monitoring of IMR volumes and results. After a 7 percent increase in volume from 2017 to 2018, IMR volume for the first half of 2019 appears to be dropping back toward 2017 levels.
As in 2018, IMR reviewers have upheld UR decisions 88 percent of the time through the first half of 2019. In addition, a small number of physicians continue to drive a disproportionate share of the IMR volume, with the top 1 percent associated with 44 percent of the IMR decisions.
Some of the country’s largest ride-sharing companies proposed a California law on Tuesday that would let them continue to treat drivers as independent contractors while also guaranteeing them a minimum wage and money for health insurance.
The state Legislature enacted legislation this year, AB-5, requiring ride-sharing companies to treat drivers as employees, which would let them form a union and entitle them to benefits like a minimum wage and workers compensation.
But the law proposed Tuesday would exempt ride-sharing companies. The proposal must be approved by voters, not the state Legislature. If passed, it would supersede the Legislature’s action and any similar ordinances passed by local governments. It also prevents lawmakers from passing another law to block it.
The proposal will only get on the ballot in November 2020 if supporters can gather roughly 660,000 signatures from registered voters. Uber, Lyft and DoorDash have already pledged $90 million to support the effort, making it one of the most expensive ballot measures ever.
“We believe the nature of this work is truly unique,” said Brandon Castillo, spokesman for the Protect App-Based Drivers & Services Coalition. He said lawmakers are “forcing an employment model that just doesn’t work for the nature of this work.”
Castillo noted the coalition is willing to negotiate with lawmakers. If the Legislature passes a similar law by June 25, they would withdraw the ballot measure, he said.
That appears unlikely. Democratic Assemblywoman Lorena Gonzalez, who authored the bill requiring companies to treat drivers as employees, called the proposed ballot measure “disingenuous.” She argues it still would not give workers retirement benefits and overtime pay, and it would not let them organize a union.
“These billion-dollar corporations still refuse to offer their workers what every other employee in California is entitled to,” she said.
The new proposal would require drivers receive at least 120% of the state or local minimum wage, whichever is higher. It would let drivers keep all tips. It requires companies to pay drivers 30 cents a mile for expenses.
And drivers who work at least 15 hours a week would get money for health insurance. They could work for multiple companies and get multiple stipends. But companies could ask drivers to prove they have health insurance as a requirement for getting that money.
The proposal is already dividing drivers.
Evidence is weak for whether medicinal cannabis treatments can relieve mental illnesses such as anxiety, depression and psychosis, and doctors should prescribe them with great caution, researchers said on Monday.
Reuters Health published a review of scientific studies that analyzed the impact of medicinal cannabinoids on six mental health disorders, the researchers found “a lack of evidence for their effectiveness.”
Their findings have important implications for countries such as the United States, Australia, Britain and Canada, where medical cannabis is being made available for patients with certain illness, said Louisa Degenhardt, a drug and alcohol expert at Australia’s University of New South Wales in Sydney.
“There is a notable absence of high-quality evidence to properly assess the effectiveness and safety of medicinal cannabinoids … and until evidence from randomized controlled trials is available, clinical guidelines cannot be drawn up around their use in mental health disorders,” she said as her results were published in The Lancet Psychiatry journal.
Despite a lack of clinical trial evidence, anecdotally some military veterans and others who suffer post-traumatic stress disorder (PTSD), depression and anxiety say they have found cannabis helpful in easing some of their symptoms. Other conditions cannabis is used for include nausea, epilepsy, and traumatic brain injury, but this study did not examine its impact on those.
Medicinal cannabinoids include medicinal cannabis and pharmaceutical cannabinoids, as well as their synthetic derivatives, THC, or delta-9-tetrahydrocannabinol – the main psychoactive ingredient of cannabis – and cannabidiol, or CBD.
“Cannabinoids are often advocated as a treatment for various mental health conditions,” Degenhardt said. “(But) clinicians and consumers need to be aware of the low quality and quantity of evidence … and the potential risk of adverse events.”
Degenhardt’s team sought to look at all available evidence for all types of medicinal cannabinoids. They included all study designs and investigated the impact on remission from and symptoms of depression, anxiety, attention-deficit hyperactivity disorder (ADHD), Tourette syndrome, PTSD and psychosis. They analyzed 83 published and unpublished studies covering around 3,000 people between 1980 and 2018.
They found that pharmaceutical THC – either with or without CBD – made psychosis worse, and did not significantly affect any other primary outcomes for the mental illnesses analyzed.
It also increased the number of people who reported side effects, and the number who decided to withdraw from a study due to side effects.
Tom Freeman, an addiction and mental health expert at Britain’s Bath University who was not involved with the study, said the findings highlighted an urgent need for high-quality trials of medical cannabis to strengthen the evidence – particularly given what he said was “significant demand” from patients.
Johnson & Johnson received grand jury subpoenas in August from the U.S. attorney’s office for the Eastern District of New York related to its opioid medication policies, the company said in a regulatory filing on Monday.
J&J said the subpoenas were related to anti-diversion policies and procedures and the distribution of its opioid medications developed by its Janssen pharmaceuticals unit.
The company said in the filing it believes the investigation relates to monitoring and reporting programs by manufacturers and distributors of opioids under the Controlled Substances Act.
“Like other companies that have manufactured opioid medications, Janssen has received subpoenas and investigative demands from various government entities, and this includes the August 2019 subpoena from the United States Attorneys Office for the Eastern District of New York,” the company said in a statement emailed to Reuters.
J&J said it understands the subpoenas are part of a “broader, industry-wide investigation” and said the company believes its anti-diversion policies and procedures complied with the law.
Johnson & Johnson last week lowered its previously reported third-quarter profit to account for a proposed $4 billion cash settlement related to the opioid crisis.
That followed a Reuters report citing sources that drug distributors McKesson Corp, AmerisourceBergen Corp and Cardinal Health had offered to pay $18billion in cash over 18 years, while J&J would pay $4 billion in cash.
The drug industry faces roughly 2,600 lawsuits brought bystate and local governments, hospitals and other entities seeking to hold drugmakers and distributors responsible for the toll of opioid abuse.
In August, an Oklahoma judge ordered J&J to pay $572.1 million to the state for its part in fueling an opioid epidemic, a sum that was substantially less than investors had expected.
Labor Code 3208.3 supposedly set a standard for evaluating psychiatric injuries in California workers’ compensation claims.
The code requires that the worker be diagnosed using the terminology and criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Third Edition-Revised, or the terminology and diagnostic criteria of other psychiatric diagnostic manuals generally approved and accepted nationally by practitioners in the field of psychiatric medicine. We are currently on the Fifth Edition.
But, no two people are exactly alike. Therefore, attempting to classify each unique individual’s mental health issues into neat categories just doesn’t work. That’s the claim coming out of a new study published in the scientific journal Psychiatry Research, that is sure to ruffle some psychologists’ feathers.
More people are being diagnosed with mental illnesses than ever before. Multiple factors can be attributed to this rise; many people blame the popularity of social media and increased screen time, but it is also worth considering that in today’s day and age more people may be willing to admit they are having mental health issues in the first place.
That’s why a new study conducted at the University of Liverpool has raised eyebrows by concluding that psychiatric diagnoses are “scientifically meaningless,” and worthless as tools to accurately identify and address mental distress at an individual level.
Researchers performed a detailed analysis on five of the most important chapters in the Diagnostic and Statistical Manual of Mental Heath Disorders (DSM). The DSM is considered the definitive guide for mental health professionals, and provides descriptions for all mental health problems and their symptoms. The five chapters analyzed were: bipolar disorder, schizophrenia, depressive disorders, anxiety disorders, and trauma-related disorders.
Researchers came to a number of troubling conclusions. First, the study’s authors assert that there is a significant amount of overlap in symptoms between disorder diagnoses, despite the fact that each diagnosis utilizes different decision rules. Additionally, these diagnoses completely ignore the role of trauma or other unique adverse events a person may encounter in their life.
Perhaps most concerning of all, researchers say that these diagnoses tell us little to nothing about the individual patient and what type of treatments they will need. The authors ultimately conclude that this diagnostic labeling approach is “a disingenuous categorical system.”
“Although diagnostic labels create the illusion of an explanation they are scientifically meaningless and can create stigma and prejudice. I hope these findings will encourage mental health professionals to think beyond diagnoses and consider other explanations of mental distress, such as trauma and other adverse life experiences.” Lead researcher Dr. Kate Allsopp explains in a release.
According to the study’s authors, the traditional diagnostic system being used today wrongly assumes that any and all mental distress is caused by a disorder, and relies far too heavily on subjective ideas about what is considered “normal.”
Dr. Roger A. Kasendorf, an osteopathic physician practicing in La Jolla, agreed to pay $125,000 to resolve allegations that he illegally prescribed opioids to his patients. The highly addictive and frequently abused opioids he prescribed included fentanyl, hydromorphone, oxymorphone, and oxycodone.
In response to the Justice Department’s focus on combatting the opioid epidemic, the Drug Enforcement Administration (DEA) and the U.S. Department of Health and Human Services, Office of Inspector General (HHS-OIG) investigated Dr. Kasendorf’s prescribing practices.
This investigation arose from data analytics tools which allow the Department of Justice to perform a variety of functions, including identifying statistical outliers, such as which doctors prescribe the highest opioid dosages and which doctors prescribe combinations of opioids and other drugs known to increase the risk of addiction, abuse, and overdose.
Based on the investigation, the United States contends that Dr. Kasendorf wrote prescriptions for opioids, including fentanyl, that were not issued for a legitimate medical purpose and while not acting in the usual course of his professional practice in violation the Controlled Substances Act and the False Claims Act.
The Centers for Disease Control and Prevention (CDC), the American Academy of Pain Medicine, the American Pain Society, state agencies and medical boards, and other medical literature provide guidance on appropriate practices when prescribing opioids.
One common tool is for health care providers to determine the Morphine Milligram Equivalent (MME, also commonly referred to as Morphine Equivalent Dose or MED) of prescribed opioids. MME is a uniform scale used to determine daily opioid dosage by using an equivalency factor to calculate a dose of morphine that is equivalent to the prescribed opioid.
The CDC recommends primary care clinicians who prescribe opioids for chronic pain outside of active cancer treatment, palliative care, or end-of-life care should avoid increasing opioid daily dosage over 90 MME or carefully justify a decision to titrate daily dosage to over 90 MME.
Prescribers should also seek to avoid prescribing opioid pain medication in combination with benzodiazepines (e.g., Xanax, Valium, Klonopin) when possible, and should consider whether the benefits outweigh the risks of combining opioids with other depressants (i.e., muscle relaxants and sleep medications).
A new research review reported by Reuters Health suggests that people with chronic back and neck pain who receive chiropractic care may be less likely to use opioid painkillers.
Researchers examined data from six previously-published smaller studies with a total of more than 62,000 participants with spinal pain. Across all of the studies, 11% to 51% of the patients used chiropractic care.
People who saw a chiropractor were 64% less likely to use opioids than people who didn’t, researchers report in the journal Pain Medicine.
“Patients with spinal pain who visit a chiropractor may receive treatments such as spinal manipulation, massage, acupuncture, exercises and education as appropriate,’ said lead author Kelsey Corcoran of Yale School of Medicine in New Haven, Connecticut.
“These therapies may lead to decreased pain, improved range of motion and increased function,” Corcoran said by email. “If a patient’s pain is well controlled by the treatment they received from a chiropractor, they may subsequently need less pain medications or even none at all.”
Chiropractors don’t prescribe opioids. However, all of the studies in the analysis examined whether receipt of chiropractic care was associated with whether patients also received opioid prescriptions from other clinicians.
It’s not clear from this analysis whether people already using opioids to manage pain might be able to cut back or eliminate opioid use after getting chiropractic care.
“In general, I think that patients wishing to avoid Rx (especially opioid) would do well to seek care from providers who can provide potentially helpful alternatives to opioid treatments – this could include chiropractors, physical therapists, massage therapists, pain psychologists, yoga instructors, and mindfulness-based stress reduction classes, etc.,” said Dan Cherkin, an emeritus senior scientific investigator at Kaiser Permanente Health Research Institute in Seattle, Washington, who wasn’t involved in the study.
The challenge is that some of these options aren’t always available or covered by insurance, Cherkin added.
Still, organizations such as the Veterans Health Administration and the American College of Physicians currently recommend that patients try conservative treatments commonly delivered by doctors of chiropractic instead of opioids, said Christine Goertz, a researcher at Duke University in Durham, North Carolina, who wasn’t involved in the study.
“The current study indicates that patients who follow these recommendations are, in fact, less likely to receive an opioid prescription,” Goertz said by email.
In 1987, several Los Angeles County school districts entered into the Benefit & Liability Programs of California Joint Powers Agreement creating the Authority to establish, operate and maintain the members’ workers’ compensation insurance program. In 2002, Inglewood Unified School District became a member.
In 2013 Inglewood Unified provided written notice of its withdrawal from membership. The Authority and the interim state administrator of the District, signed a resolution regarding the District’s withdrawal. According to the Resolution the Authority’s governing board permitted the District to withdraw from the Authority on certain conditions.
In 2015 Inglewood filed its complaint against the Authority alleging a variety of claims, including breach of contract based on the Authority’s failure to pay funds owed to the District under the Agreement within a reasonable period of the District’s withdrawal from, or termination of, membership.
In 2016 the Authority paid $4 million to the District pursuant to an interim agreement between the parties. Prior to that date an accounting had determined the Authority owed the District $6,351,792. The remaining balance of $2,351,792 was the subject of the litigation.
Senate Bill No. 533 brought the school district under state control. Inglewood’s state administrator Melendez de Santa Ana, in her capacity as its trustee, filed the operative third amended complaint, which alleged the same underlying breach of contract claim as the initial complaint.
The court found the District was entitled to $2,351,792 plus interest on retained funds in the amount of $192,711, but the Authority was not entitled to recovery of attorney fees and costs incurred in the litigation. The trial court judgment was affirmed in the unpublished case of Santa Ana v. Benefit & Liability Programs of California
Although the Authority had paid $4,000,000 in 2016,a balance of $2,351,792 remained outstanding. The court found, “Two years is not a reasonable time.” Thus, the trial court essentially ruled the District was therefore entitled to prejudgment interest on the withheld funds pursuant to Civil Code section 3287, subdivision (a). Substantial evidence, including the parties’ stipulated facts, supports the trial court’s finding of breach.
The court expressly found the Authority was not entitled to its attorney fees “under the [Agreement], Bylaws, Resolution or the law.” The court of appeal agreed with the trial court’s interpretation of the Resolution.
Two Home Depot warehouse workers had an accident while driving vehicles called electric pallet jacks at Home Depot’s Mira Loma distribution warehouse.
After a workplace accident and inspection, the Division of Occupational Safety and Health cited Home Depot for several violations of workplace safety standards. The investigator found that the industrial truck operators wore tennis-type shoes while they were operating industrial trucks.
The Division determined Home Depot had violated regulations which requires “appropriate foot protection” for employees exposed to foot injuries, and which sets standards for the safe operation of industrial trucks and requires employers to make sure their employees comply. The Division said that in this case “appropriate” would be steel toed shoes.
Home Depot challenged the citations. Ultimately, the respondent, California Occupational Safety and Health Appeals Board, affirmed the footwear citation because Home Depot employees were exposed to foot injuries when they manually lift heavy loads and when they worked on foot or walked in close proximity to industrial trucks. They found Home Depot’s safety policies and prohibition on open-toed or open-heeled shoes didn’t adequately protect those employees.
The Board affirmed the truck-operation citation because Home Depot did not establish the employee caused the infraction despite knowing her conduct was contrary to the employer’s safety requirements.
Home Depot filed a petition for writ of mandate, asking the trial court to relieve them of the footwear citation on the ground the findings weren’t supported. The trial court declined, and Home Depot asked the court of appeal to make the same determination. However, the court of appeal affirmed in the unpublished case of Home Depot USA v California Occupational Safety and Health Appeals Board.
Home Depot did not require their employees to wear protective shoes when they worked in the warehouse. Their policy required only that they wear “closed-toed and closed-heeled shoes.” Home Depot’s policy said “Flip-Flops, sandals, open-toed shoes, or open heeled shoes” are unacceptable.
Home Depot says they don’t require their warehouse employees to wear steel-toed boots or similar footwear because such footwear can cause ergonomic problems, tripping hazards, and fatigue, and they can be “cumbersome,” “uncomfortable” and “bulky.”
Amicus curiae, Retail Litigation Center, Inc. and National Federation of Independent Business, who support Home Depot, object that the Board’s opinion articulates an “uncertain standard [that] will have far-reaching consequences for employees in a wide range of businesses, including large retailers and small independent businesses that may have industrial trucks or pallet jacks in the facility even though the majority of employees encounter them only rarely.”
However, the court of appeal concluded that there was substantial evidence supporting the Board’s determination that Home Depot employees were both actually exposed and realistically likely to be exposed to foot injuries. A violation of the safety order is not based on previous history of accidents or injuries resulting from the exposure but rather on the existence of the danger which may cause injury.
The court did however “agree the language in the Board’s opinion can be read to sweep too broadly, so we emphasize our holding is limited to the facts and evidence of the case.”