Menu Close

Almaraz-Guzman AME Faces Multiple Court Battles

Public records reflect that Bruce E. Fishman, M.D. was first licensed in California as a physician and Surgeon in 1983. His license was revoked in 1987 based upon his federal conviction of conspiracy to distribute controlled substances. In June, 1990, he was granted a probationary license and in 1994 his certificate was reinstated without restriction.

He was the AME in the landmark Almaraz-Guzman decision in 2009, that paved the way for deviations from a strict interpretation of the AMA Guides.

However, in April, 2018, the DIR issued him a Notice of Provider Suspension from participation in the Workers Compensation system.  Fishman pursued his right to request a hearing of that action.

He is also the defendant in a 2018 Qui Tam action brought by Plaintiffs State of California, the Counties of Los Angeles, Kern, San Bernardino, Ventura, Santa Barbara, the Cities of Los Angeles and Bakersfield, the School Districts of Los Angeles, McFarland, Visalia and Kern, the Health Care District of Tehachapi, ex al. Med-Legal Associates, Inc. and CLCI, Inc., alleging, among other things, a violation of the California Insurance Fraud Prevention Act – Insurance Code § 1871.7

He is also involved in litigation against his former Lien Collection and Med-Legal management company which is the subject of an opinion this month by the California Court of Appeal in the unpublished case of Med-Legal Associates, Inc. v. Fishman.

In 2008, Fishman entered into a relationship with Green Lien Collections, Inc., a company owned by Patrick Nazemi, which provided billing, collection, and enforcement services to medical providers in the workers’ compensation field. In 2011, Nazemi formed Med-Legal Associates, Inc. “with the intent to provide management services to med-legal providers.”

Paragraph 2.d of the Management Services Agreement provides that MLA would assist Fishman in arranging for advertising and marketing services, and that Fishman is responsible for paying the actual cost and expense of all advertising services. The Agreement also contains an arbitration provision.

Dr. Fishman became dissatisfied with MLA’s services, specifically finding that the medical transcribers, physician assistants, and medical researchers were inadequate and underqualified. As a result, Dr. Fishman spent additional, uncompensated time completing work that he expected MLA’s personnel to complete. Moreover, the advertising services were inadequate.

Perhaps more toxic was the fact that the personal relationship between Dr. Fishman and Mr. Nazemi began to erode.Fishman testified that Mr. Nazemi attempted to extort him by threatening to expose an old felony conviction.

in 1983, Dr. Fishman had been convicted of a federal felony related to the practice of medicine during his medical residency in Michigan and had served a federal prison sentence. As a result, Dr. Fishman’s medical license had been revoked in both California and Michigan. Although California ultimately restored Dr. Fishman’s medical license in 1990, Michigan never did.

A consequence of the felony conviction was that Dr. Fishman did not complete his residency in orthopedic surgery and did not obtain board certification in the field of orthopedic surgery. Instead, Dr. Fishman is board-certified by the American Board of Preventive Medicine (Occupational Medicine) and carries the initials ‘F.I.C.S[.],’ which stand for Fellow of the International College of Surgeons.

On July 20, 2015, MLA filed with JAMS a petition for arbitration against Fishman for breach of contract and fraud. According to MLA, Dr. Fishman’s failure to disclose the felony conviction prior to entering into the MSA was fraud. Had MLA known that Dr. Fishman was not a board certified orthopedic surgeon, it would never have entered into the MSA or introduced Dr. Fishman to its business contacts. Fishman filed a cross-claim for breach of contract and intentional infliction of emotional distress.

According to the arbitrator, the parties were contentious throughout the arbitration process. The arbitrator found that MLA failed to prove all requisite elements of its breach of contract and fraud claims, and that MLA breached the MSA by not providing Fishman with adequate staffing and promotional services, as required by the MSA.The arbitrator awarded Fishman $113,400. As the prevailing party, Fishman was entitled to attorney fees and costs. He claimed over $1.2 million in attorney fees and $128,000 in costs. Ultimately, the arbitrator awarded Fishman one-third of what was requested in attorney fees: $418,257.

Acrimonious litigation continued up to the Court of Appeal which affirmed the arbitrators award in the unpublished case of Med-Legal Associates, Inc. v. Fishman. Following the appeal Fishman was awarded attorney fees and costs on appeal.

Industry Mourns Passing of WCAB Commissioner Frank Brass

Retired WCAB Commissioner Frank Brass passed away on Monday.

Katherine Zalewski, chair of the Workers’ Compensation Appeals Board (WCAB), issued the following statement on the March 11 death of retired WCAB Commissioner Frank Brass:

“We pause today to mark the life and contributions of Frank Brass. Frank served as a WCAB commissioner for 17 years from 2001 to 2018, and had over 40 years of experience as an attorney specializing in workers’ compensation.”

He began his practice under the tutelage of Lowell A. Airola, a founding member of the California Applicants’ Attorneys Association, and worked in distinguished law firms including Parente and Christopher and Brass and Zuckerman/Fremont Indemnity.

He attended St. Ignatius High School and earned a Juris Doctor degree from the University of San Francisco School of Law and a Bachelor of Science degree from the University of San Francisco.

Frank also served as an infantryman in the U.S. Army from 1952 to 1954.

Frank was loved and respected by his colleagues at the Board and in the larger workers’ compensation community. We are all saddened by his passing.”

He retired as Commissioner of the WCAB in 2018, after having been first appointed in 2001, reappointed in 2008 by Governor Schwarzenegger, and then again by Governor Brown in 2014.

C & R Only Releases Items Listed in Paragraph One

Maria Morales filed two claims against her employer. The first was a claim for injury to the left thumb, knees, back, headaches, internal body system, psyche, neck, and “multiples” on September 9, 2000 (ADJ2160716). The second claim was for injury to the internal system, neck, back, knees, upper extremities, psyche, and urinary system through July 31, 2001 (ADJ634371).

On June 13, 2016, the parties entered into a compromise and release in the amount of $118,000.00. Both of applicant’s claims were described in Paragraph One (1 ), but the internal system was not listed as a body part, condition or system being settled in ADJ634371. Below Paragraph Ten (10) of the C&R, the parties drew a star and handwrote, “[r]esolves all liability/claims against American Home Assurance Company/AIG for Lifestyle Furnishings.”

Approximately 26 days later, applicant notified defendant that she did not believe that the compromise and release resolved the claimed injury to her internal system.

On May 22, 2017, the matter proceeded to trial on the issue of whether the compromise and release barred applicant’s claim of injury to her internal system.

The WCJ found that the “Compromise and Release Agreement entered into on June 13, 2016 by AIG Property and Casualty (AIG) resolves applicant’s internal claim of injury in addition to all other claims of injury resolved by that agreement” and that the “claims filed against AIG were fully resolved by the Order Approving Compromise and Release dated June 13, 2016.”

The WCAB granted reconsideration, and reversed, finding that applicant’s claim of internal injury was not resolved as part of the June 13, 2016 Compromise and Release in the panel decision of Morales v. Universal Furniture, AIG.

The parties must clearly identify each injury and list the corresponding body parts in Paragraph One (1) because that section requires that the parties state “with specificity the date(s) of injury(ies) and what part(s) of body, conditions or systems are being settled.” (C&R, Paragraph One (1), p. 3, emphasis added.) Further Paragraph One (1) also states that “[b]ody parts, conditions and systems may not be incorporated by reference to medical reports.” (Id. at pp. 3, 4, 5, emphasis in original.) Paragraph One (1)· allows the parties to clearly identify the settlement of multiple injuries with corresponding body parts by requiring that the parties list the case number, the type of injury, the date of injury and the settled body parts. (Id.)

Therefore, if parties wish to settle multiple injuries to the same body part, the parties must list that body part under the description of each injury, and the parties may not settle multiple injuries to one body part by listing the body part under the description of one injury but not another.

In Jefferson v. Dept. of Youth Authority (2002) 28 Cal.4th 299 [67 Cal.Comp.Cases 727], the Supreme Court held that a general release in a workers’ compensation case will bar other potential claims against the employer that exist at the time of execution of the release unless the employee knows about the claim and expressly excepts it from the release. (Id. at p. 310.) However, approximately six years after the Supreme Court decided that case, the compromise and release form was revised to prevent overbroad releases and thus further the legislative intent of protecting workers who might agree to unfortunate compromises because of economic pressure or lack of competent advice.

The release in Paragraph Two (2) of that form states in relevant part, Upon approval of this compromise agreement . . . and payment in accordance with the provisions hereof, the employee releases and forever discharges the above named employer(s) and insurance carrier(s) from all claims and causes of action, whether now known or ascertained or which may hereafter arise or develop as a result of the above-referenced injury(ies)

This release does not bar applicant’s claimed internal injury because it is limited to the settlement described in Paragraph One (1), and as discussed above, that paragraph did not settle the claimed internal injury.

Uber Settles Classification Suit After 9th Circuit Victory

Uber announced that it settled a pair of lawsuits for $20 million. The case of O’Connor v. Uber, was first brought by a group of Uber drivers in 2013 who argued they should be categorized as employees rather than freelancers.

By classifying drivers as contractors, Uber avoids providing benefits of traditional employment such as health insurance, paid sick time, and workers’ compensation.

It was almost settled in 2016, when Uber agreed to pay as much as $100 million to the roughly 385,000 drivers represented in the class action lawsuit and one other case, so long as it could continue to classify them as freelancers.

But the settlement was later rejected by a federal judge, who argued that the amount was insufficient.

Since then, the tide has shifted in Uber’s favor. The US Supreme Court issued a ruling bolstering the power of employers to force workers to use individual arbitration instead of class action lawsuits.

Last year, the Ninth US Circuit Court of Appeals reversed O’Connor v. Uber’s class certification status, nullifying the decision on the ground that Uber’s arbitration clause prohibits class actions. The appeals court ruling ultimately reduced the size of the class to about 13,600 drivers who will participate in the settlement.

Under the current agreement, drivers will receive $20 million, approximately 37 cents per mile for the miles they have driven for Uber.

The settlement still requires a judge’s approval, but Uber is ready to put the past behind it. “Uber has changed a lot since 2013,” a spokesperson said in a statement. “We have made the driver experience even better through improvements like in-app tipping, a redesigned driver app, and new rewards programs like Uber Pro. We’re pleased to reach a settlement on this matter and we’ll continue working hard to improve the quality, security and dignity of independent work.”

Covidien Settles Kickback Case for $20M

Covidien was an Irish-headquartered global health care products company and manufacturer of medical devices and supplies. It was purchased by Medtronic in a transaction that closed in 2015.

Covidien has agreed to pay $17,477,947 to resolve allegations that it violated the False Claims Act by providing free or discounted practice development and market development support to physicians located in California and Florida to induce purchases of Covidien’s vein ablation products.

Under the settlement agreement, Covidien will pay an additional $1,474,892 to California and $1,047,160 to Florida for claims settled by these state Medicaid programs. The Medicaid program is a jointly funded federal and state program.

The United States alleged that Covidien violated the Anti-Kickback Statute and, correspondingly, the False Claims Act by providing practice development and market development support to health care providers located in California and Florida from Jan. 1, 2011, through Sept. 30, 2014, to induce those providers to purchase ClosureFASTTM radiofrequency ablation catheters that were billed to Medicare and to the California and Florida Medicaid programs.

ClosureFastTM catheters are used in procedures that treat venous reflux disease, a disease often marked by the presence of varicose veins.

The practice and market development support Covidien provided included customized marketing plans for specific vein practices; scheduling and conducting “lunch and learn” meetings and dinners with other physicians to drive referrals to specific vein practices; and providing substantial assistance to specific vein practices in connection with planning, promoting, and conducting vein screening events to cultivate new patients for those practices.

The Anti-Kickback Act prohibits the payment of remuneration to induce the referral or use of items or services paid for by federal health care programs. Remuneration includes not only cash payments but also offers or payments made “in kind.”

The settlement resolves allegations contained in lawsuits filed by Erin Hayes and Richard Ponder (former sales managers for Covidien) and Shawnea Howerton (a former employee of one of Covidien’s customers), which are pending in federal court in San Francisco, California.

The lawsuits were filed under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private individuals to sue on behalf of the United States for false claims and to share in any recovery. Mr. Hayes and Mr. Ponder will receive $3,146,030 as their share of the federal recovery.

San Fran Acupuncturist Indicted For Fraudulent Billing

A federal grand jury has indicted San Francisco acupuncturist Haichao Huang, charging him with health care fraud and making false statements relating to health care billing.

Huang, was a health care provider who offered acupuncture, physical therapy, massage, and other services at his office in San Francisco.

The indictment alleges that Huang submitted claims for reimbursement to his patients’ health insurance plans, claiming that he provided reimbursable services and treatments when, in fact, he knew that the billings were false and not properly reimbursable.

The indictment gives three examples of the ways in which Huang allegedly submitted billings for reimbursement. First, Huang submitted requests for reimbursement for acupuncture and other treatments when, in fact, the patient had received either much shorter periods of treatment or no treatment at all.

Second, after a patient reached the limit of acupuncture sessions allowed by the relevant insurance plan, Huang billed the plan for other types of treatments and services that were not provided in order to continue receiving improper reimbursements.

Third, Huang submitted claims for services rendered on days when the patient beneficiaries were not seen and received no services at all – including days when Huang was not in California.

Huang is charged with six counts of health care fraud, in violation of 18 U.S.C. § 1347, and one count of false statement relating to health care matters, in violation of 18 U.S.C. § 1035(a)(2).

If convicted, the defendant faces a maximum sentence of 10 years in prison and $250,000 for each violation of 18 U.S.C. § 371. The defendant faces five years in prison and a fine of $250,000 if convicted of the violation of 18 U.S.C. § 1035(a)(2).

Huang pleaded not guilty and was released on bond. Huang’s first appearance before a district court judge is scheduled for March 22, 2019, before the Hon. Susan Illston, U.S. District Judge.

This prosecution is the result of investigations by the Office of Personnel Management Office of Inspector General and the Department of Labor Office of Inspector General, with assistance from the San Mateo County District Attorney’s Office.

WCAB Rules “De Facto” Ownership Triggers 4615 Stay

Trial proceeded in the case of Ana Villanueva v Teva Foods, Travelers Insurance Company on December 12, 2018 on the issue of whether the lien of Firstline Health, Inc., should be subject to an automatic stay pursuant to Labor Code section 4615.

The WCJ found that applicant claimed an injury arising out of and in the course of her employment on October 11, 2012; that criminally charged providers Munir Uwaydah, M.D., and Paul Turley controlled Firstline pursuant to Labor Code section 139.21(a)(3); and, that Firstline’s Exhibit 73 is not admissible as it was not listed on the pre-trial conference statement.

The WCJ thus ordered that the lien of Firstline in this case is subject to a stay pursuant to section 4615.

Firstline filed a Petition for Reconsideration contending that as of October 11, 2010, David Johnson, M.D., was the sole owner and officer of Firstline and thus “controlled” Firstline pursuant to section 139.21(a)(3); that Dr. Johnson is not currently charged with any crime; and, thus, there are no grounds to impose a section 4615 stay against its lien in this case.

Defendant did not file an answer to Firstline’s Petition for Reconsideration.

The WCJ filed a Report recommending that Firstline’s Petition for Reconsideration be denied because defendant’s evidence indicates that Dr. Uwaydah exercised absolute control over Firstline despite the fraudulent identification of other individuals as owners, officers or directors of Firstline in official documents, which was done in order to hide Dr. Uwaydah’s ownership and control of Firstline from creditors, investigators, government agencies and law enforcement.

Mr. Turley states that Firstline was created to take over the fraudulent activities of Frontline, and that Dr. Uwaydah exercised the same absolute control over Firstline as he had over Frontline, even though others – including Dr. Johnson – were identified as owners, officers or directors:

Uwaydah fled the United States to Lebanon in June of 2010…In the Fall of 2010, Turley traveled to Lebanon to confer with Uwaydah and to discuss how to keep the Frontline Business operating without Uwaydah’s presence, and without his name being connected to the business.

Uwaydah told Turley that there was close to a billion dollars in receivables from Frontline and Firstline

Dr. Uwaydah’s control extends to the current criminal defense in this case. He has paid millions of dollars for the attorneys for the defendants, including defending Turley.

The WCAB on reconsideration said it concurs with the conclusion of the WCJ that defendant’s evidence, namely defendant’s Exhibit C, the “Factual Statement of Paul Turley dated 12/3/18” appears to establish prima facie grounds to impose a section 4615 stay against Firstline’s lien based on Dr. Uwaydah’s de facto ownership and control of Firstline.” The ruling is posted to its website as a “Significant Panel Decision.

However, the Turley Statement was produced on the eve of trial and thus, lien claimant did not have sufficient notice or opportunity to rebut the Turley Statement.”

Lien claimant objected that the Turley Statement was part of a plea arrangement in his criminal case wherein he pled guilty and got credit for time-served in exchange for his execution of this statement.

The Petition for Reconsideration, was granted, and the WCAB rescinded the F&O and returned this case to the trial level for further proceedings consistent with this decision. Firstline is thus afforded an opportunity to rebut the Turley Statement.

NH Supreme Court Rules on Comp Cannabis

Andrew Panaggio suffered a workrelated injury to his lower back in 1991. A permanent impairment award was approved in 1996, and in 1997 he received a lump-sum settlement.

Panaggio continues to suffer ongoing pain as a result of his injury and has experienced negative side effects from taking prescribed opiates. In 2016, the New Hampshire Department of Health and Human Services determined that Panaggio qualified as a patient in the therapeutic cannabis program, and issued him a New Hampshire cannabis registry identification card.

Panaggio purchased medical marijuana and submitted his receipt to the workers’ compensation insurance carrier for reimbursement. The carrier, CNA Insurance Company, denied payment on the ground that “medical marijuana is not reasonable/necessary or causally related” to his injury. A hearing officer and the board agreed with the denial.

A majority of the board upheld the carrier’s refusal to reimburse Panaggio. It noted that the statutory language of the Cannabis law states that “[n]othing in this chapter shall be construed to require . . . [a]ny health insurance provider, health care plan, or medical assistance program to be liable for any claim for reimbursement for the therapeutic use of cannabis. And concluded that “the carrier is not able to provide medical marijuana” because such reimbursement is “not legal under state or federal law.”

The Supreme Court of New Hampshire disagreed, and reversed in the case of Appeal of Andrew Panaggio.

It noted that statutes in other jurisdictions expressly prohibit workers’ compensation insurance carriers from reimbursing claimants for the cost of medical marijuana. See, e.g., Fla. Stat. § 381.986(15) (2017) (providing in Florida’s Medical Use of Marijuana statute that “[m]arijuana . . . is not reimbursable under” Florida’s Workers’ Compensation Law); Mich. Comp. Laws § 418.315a (2014) (providing in the Michigan Worker’s Disability Compensation Act that “[n]otwithstanding” the requirement that an employer “shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical . . . treatment,” an employer “is not required to reimburse or cause to be reimbursed charges for medical marihuana treatment”).

But “Had the legislature intended to bar patients in the therapeutic cannabis program from receiving reimbursement under RSA 281-A:23, I, it easily could have done so, and we will not add language that the legislature did not see fit to include.”

“Because the board’s order fails to sufficiently articulate the law that supports the board’s legal conclusion and fails to provide an adequate explanation of its reasoning regarding federal law, it is impossible for us to discern the basis for the board’s decision sufficient for us to conduct meaningful review.”

The case was remanded to the board for a determination of the issue of the federal criminal issues in the first instance.

Compounders Can Be Cheaper Than Drugmakers

In a radiation-proof room at the Erasmus Medical Center in Rotterdam, Emar Thomasa sits behind shielded glass as he carefully measures and mixes lutetium octreotate, an intravenous treatment for certain types of cancer.

The Dutch hospital has been offering it to patients for more than a decade at 16,000 euros ($18,000) for one course of treatments. Drug firm Novartis, which in 2018 acquired rights to sell it in Europe, is asking more than five times that for its proprietary version, Lutathera.

Thomasa is part of a protest against high drug prices launched by an unlikely group of rebels: Dutch pharmacies.

Three – Erasmus, Amsterdam’s University Medical Center (UMC) and the Transvaal Pharmacy in The Hague – have vowed to bypass drug company products and make treatments for a handful of rare diseases themselves, exercising their right to “compound” medicines.

The dispute is part of a growing global backlash against high drug prices, from the United States and Canada to Japan, and campaigners said it was being closely watched by health experts elsewhere.

Compounding is the ancient practice of preparing medicines for individual patients. Pharmacists are trained to compound, though nowadays most medicines are made by industrial producers.

UMC received a 5-million-euro grant last month to expand its compounding program. It plans to use the money to set up a center to swap know-how with pharmacies at home and abroad.

The worldwide push against high drug prices has seen the Trump administration in the United States declare bringing down prescription prices a top priority.

The Dutch pharmacies, whose production is on a small scale, acknowledge they may face legal challenges from the drug industry. However, such a case could set a precedent for other European countries.

Pharmacies retain the right under European and American law to prepare medicines for individual patients. Common examples including making lower dosage versions for children or liquid versions for people with difficulty swallowing.

However, in the United States, for-profit compounding pharmacies have tested the limits of what they are allowed to do in recent years, including mixing medicines in large quantities. In some cases, that has prompted legal conflicts with drugmakers.

Official scrutiny of the practice increased after the 2012 deaths in Massachusetts, which led to U.S. lawmakers requiring bulk compounding facilities to register with the Food and Drug Administration (FDA) and meet quality and labeling standards – still not as stringent as full FDA drug approval.

The first two drugs targeted by Dutch pharmacies are Novartis’s Lutathera and a drug called CDCA, registered in Europe by Leadiant.

Novartis boss Narasimhan said he was worried by developments in the Netherlands. “The Netherlands’ characterization that the local medicine that is made in the hospitals is the same as what we’ve done from a regulatory, full-development standpoint, particularly given (the Dutch) will house the European Medicines Agency, I think is troubling,” he told Reuters in an interview.

Knee Surgery Does Not Help Everyone

According to the American Orthopedic Society Sports Medicine, worldwide, more than 4 million people get arthroscopic knee surgery each year.

During the operation, a surgeon makes a small incision in the knee and inserts a tiny camera called an arthroscope to view the inside of the joint, locate and diagnose the problem, and guide repairs. Sometimes surgeons remove all of the meniscus, the cartilage that works as a cushion between the shin and thigh bones, and other times they only remove part of it.

While this is minimally invasive, it’s not risk-free. Patients receive anesthesia, which in any surgery may lead to complications such as allergic reactions or breathing difficulties. In addition, this specific procedure might potentially damage the knee or trigger blood clots in the leg.

A review of past studies published in the British Journal of Sport Medicine by researchers, and reviewed by Reuters Health, suggests that many middle-aged and older adults with torn cartilage and pain in their knee are not likely to benefit from arthroscopic surgery.  

Researchers analyzed 10 previous clinical trials that randomly offered some patients knee surgery and others nonsurgical options including exercise or medication. Overall, knee surgery was no better than these alternatives for improving physical function, and resulted in only a small reduction in pain.

In the current analysis, all of the trial participants who got knee operations had a partial meniscectomy, removing only some of this cartilage.

For all types of patients – including people with and without arthritis pain – surgery was slightly better than physical therapy at reducing pain after 6 to 12 months, an analysis of five trials with a total of 943 patients found.

However, when researchers looked just at a subset of patients without knee pain from arthritis in their knee, surgery did appear moderately better than physical therapy for reducing pain from the tear.

In three trials of 402 patients without arthritis pain, surgery had a small to moderate advantage in knee pain improvement after 6 to 12 months over physical therapy.

Two trials with 244 patients without arthritis pain also found surgery associated with a moderate to much larger improvement in quality of life than nonsurgical treatment.

“Surgery does not work for everyone but in selected cases we show that surgery should be available to patients,” said lead study author Simon Abram of the University of Oxford in the UK.

“In most circumstances, patients should try physiotherapy first,” Abram said by email. “If this does not improve symptoms, knee surgery may be beneficial, especially in patients without osteoarthritis and with specific symptoms.”