This year, NCCI tracked more than 800 state and federal workers compensation-related bills and monitored almost 200 workers compensation-related regulations. Legislation impacting workers compensation coverage for first responders continued to be a hot topic with more than 100 bills considered. Here are the key areas of legislative interest for the coming months.

The First Responder Bills addressed compensability for certain cancers and other diseases as well as compensability for post traumatic stress disorder.

California addressed this issue with AB 1749 which was signed into law this year. This new law was created as a result of the October 1, 2017, mass shooting in Las Vegas, Nevada. The new law provides that an employer, at its discretion or in accordance with specified policies, is not precluded from accepting liability for compensation for an injury sustained by a peace officer by reason of engaging in the apprehension or attempted apprehension of law violators or suspected law violators, or protection or preservation of life or property, or the preservation of the peace, outside the state of California.

Legalization of Marijuana. At least 25 states considered legislation to legalize marijuana for medical and/or recreational purposes this year; however, only a few states, including Louisiana, Oklahoma, and Vermont enacted laws. At this time, there are nine states, plus the District of Columbia, that have legalized the recreational use of marijuana, and three states, Idaho, Kansas, and Nebraska, that have not legalized marijuana in any form.

Opioids. In 2018, almost every state introduced legislation related to prescription drugs and about 20 states considered legislation addressing prescription drugs in workers compensation. Arizona and Hawaii passed legislation this session to address the use of opioids in workers compensation.

Gig Economy. In 2018, nine states considered legislation defining the term “marketplace contractor” to classify certain on-demand workers as independent contractors. Five of those states—Florida, Indiana, Iowa, Kentucky, and Tennessee—passed legislation in 2018.

The circumstances under which California businesses may classify workers as independent contractors rather than employees under California wage laws have been greatly narrowed by a decision the California Supreme Court issued April 30, 2018.

The landmark decision in the case known as Dynamex presumes that all workers are employees, sets out a new three-part “ABC” test businesses must satisfy in order to classify workers as independent contractors, and, as one expects in California, places the burden on the business, not the worker, to prove that any particular worker is properly classified as an independent contractor. The decision has immediate ramifications for businesses throughout California.

Air Ambulances. There is pending federal legislation which is intended to preserve state authority to regulate network participation, reimbursement, and balance billing of air carriers providing air ambulance services. Currently the federal Airline Deregulation Act of 1978 has been held to preempt state regulation of air ambulance fees in some litigation.  California’s Court of Appeal denied defendant’s petition for writ of review in the en banc deci

Suspected drug dealer Trevon Lucas was indicted by a federal grand jury for distributing fentanyl that caused the death of a La Jolla resident, identified only as C.A.S. in court filings.

According to statements made by prosecutors at his detention hearing, C.A.S. was found dead in his mother’s home on the morning of June 30, 2018.  Evidence obtained from C.A.S.’s cellular phone and a parking lot surveillance camera indicate he met Lucas to purchase prescription oxycodone pills around 11:20 p.m. the night before his mother found his body. Law enforcement officials recovered counterfeit oxycodone pills that contained fentanyl from C.A.S.’s residence, and the medical examiner has since identified fentanyl intoxication as the cause of death.

Lucas and three other residents of the Highland / San Bernardino area – Cenclair Fields, Donovan Carter, and Kevin Chandler – were also indicted for their roles in an ongoing conspiracy to distribute pharmaceutical pills containing hydrocodone. Law enforcement officials have gathered evidence indicating that Lucas and Carter posted advertisements on a well-known website to illegally sell prescription pills.

“Fentanyl is claiming record numbers of victims, most of whom don’t even know they’re swallowing a pill that’s laced with the deadly drug,” said U.S. Attorney Adam Braverman. “Those who sell fentanyl resulting in death will be held accountable for their callous and reckless disregard for human life.”

“We’re seeing a dangerous trend of drug dealers and cartels cutting various drugs with fentanyl, which is a recipe for death,” said District Attorney Summer Stephan. “When you sell fentanyl to another human being, you are providing them with toxic poison that can kill them in a matter of seconds. Even a tiny amount of fentanyl can be deadly, which is why we’re working with our partners at the U.S. Attorney’s Office, and Drug Enforcement Administration to address this disturbing trend.”

“Unless you buy your prescription pills from a legitimate pharmacy, it’s very likely you’ll get fake prescription pills laced with deadly fentanyl,” said DEA Special Agent in Charge Karen Flowers. “Individuals seeking to make an easy buck are putting fentanyl into fake pills and passing them off as legitimate prescription medications. DEA and our law enforcement partners will continue to target and relentlessly pursue the individuals who are selling fake prescription pills laced with deadly fentanyl to citizens in our community.”

Lucas, Carter, Chandler, and Fields made their initial appearances in federal court Friday, October 5, before U.S. Magistrate Judge Barbara L. Major, followed by a detention hearing. Judge Major detained Lucas based on the seriousness of the charges against him, while setting bonds for Fields, Carter and Chandler. Their next hearing is scheduled for November 9, 2018 before U.S. District Judge Cathy Ann Bencivengo.

Lucas is the fifth person since January to be charged in the Southern District of California with Distribution of Fentanyl Resulting in Death. This case involved a collaborative effort between the United States Attorney’s Office and the San Diego County District Attorney’s Office.

Yolo County District Attorney Jeff Reisig and Colusa County District Attorney Matthew Beauchamp announced that 32-year-old, Daniel Ayala, of Colusa, was sentenced to 365 days of county jail, 5 years felony probation, and an $890 fine.

Ayala plead no contest to one count of felony workers’ compensation insurance fraud. As part of the plea agreement, Ayala’s remaining felony counts were dismissed in the interest of justice. The defendant’s county jail time is stayed pending successful completion of probation and a monthly restitution payment of $350 per month to fulfill his court-ordered restitution in the amount of $19,324.68.

While working for Greenwood Dairy in Orland, CA in January 2014, Daniel Ayala claimed he was injured while working.

Ayala received $15,876.63 in workers’ compensation benefits due to his reported injury. Based on Ayala’s medical complaints from his reported industrial accident in January 2014, Ayala was diagnosed with cervical strain and disc herniation according to his probation report.

Zenith Insurance contracted a private investigations company who recorded Ayala performing activity and tasks not consistent with his reported injury and his clinical symptoms. Ayala intentionally misrepresented his industrial injury in order to obtain workers’ compensation benefits that he would not otherwise be entitled to.

This case was investigated by the Fresno County District Attorney’s Office. The Fresno County Superior Court determined this case would be best prosecuted in the county of Colusa. The Colusa County District Attorney’s Office is a member of the Yolo County DA’s multi-jurisdictional Workers’ Compensation Insurance Fraud Program which covers the counties of Colusa, Sutter, and Yuba.

The Yolo County multi-jurisdictional Workers’ Compensation Insurance Fraud unit works to prevent and investigate claimant fraud, medical provider fraud, premium fraud, and uninsured employers. The most common type of workers’ compensation insurance fraud is claimant fraud, which Daniel Ayala was convicted of. Claimant fraud occurs when an employee lies or omits a material fact in order to obtain benefits that they would not have otherwise been entitled to. Examples would be to lie about how an injury occurred, the extent of their injury, or not to report outside employment and income.

The FDA put out its in-house assessment of Trevena’s new pain med, now up for review, and at first blush it’s not looking good for the biotech today.

In an assessment of the drug’s efficacy and safety, insiders tagged Trevena’s treatment for a mixed set of data that highlighted how morphine often produced better pain relief for the target patient population. The biotech’s opioid, furthermore, has “high abuse potential,” according to the FDA, raising a red flag for analysts who have watched lawmakers and the FDA organize a nationwide campaign against opioid abuse.

Investors added up the warnings, and beat a hasty retreat. Trevena’s shares $TRVN lost more than half their value in a short time, with most betting against the biotech at their upcoming outside panel review this week.

Trevena was cited by the FDA on the trial design, chided for creating an endpoint on the comparative respiratory safety burden of their drug and morphine – which has well documented problems on that score – uncertain over its clinical meaningfulness.

The FDA called out the drug for causing adverse events, including “hepatic adverse events and QT prolongation.”

Efficacy was also a mixed bag, with morphine significantly outperforming their drug at key doses.

In FDA’s analysis for Study 3002, two of the three doses of oliceridine (0.35 mg and 0.5 mg) demonstrated a statistically greater reduction in pain intensity than placebo, but the 0.1 mg dose did not. In Study 3002, morphine demonstrated a greater reduction in pain intensity relief than two of the doses of oliceridine (0.1 mg and 0.35 mg) that was statistically significant. The reduction in pain intensity by morphine was not greater than that of the highest oliceridine dose (0.5 mg). Currently, Trevena is only seeking approval of the 0.1 mg and 0.35 mg doses.

There have been questions circulating about this drug, their data and the company as a whole since early 2017, when analysts first started questioning the Phase III results and the way it stacked up – or didn’t – against morphine. The company was forced to undergo a painful restructuring and the CEO, Maxine Gowen, officially stepped down at the beginning of this month.

It’s not unusual for in-house reviews to take the most skeptical view of a drug, but Trevena appears to have fallen well short of the kind of grade needed to win over outside experts on Thursday. We’ll see what the experts say, leaving the FDA to come to a final decision. But Trevena is fighting an uphill battle.

Howard William Neel was a mobile driver for Elite Security. His car was hit while he was pumping gas on December 12, 2009. He made numerous false statements regarding his injuries and what caused them to several doctors. Based on the false representations, defendant submitted and received workers’ compensation benefits for his injuries.

Neel was found guilty by jury of six counts of insurance fraud. (Ins. Code, § 1871.4, subd. (a)(1).) The trial court suspended imposition of sentence and placed him on a three-year term of formal probation.

Among the terms and conditions, Neel was required to maintain his residence as approved by the probation officer and not to change his residence without prior written approval of the probation officer; defendant was also prohibited from leaving California without written permission from the probation officer. The trial court also ordered defendant to cooperate with any psychological or psychiatric testing or counseling suggested by the probation officer, and to authorize the release of any records from a psychologist, psychiatrist, counselor, or physician.

Defendant contends on appeal that general condition No. 4’s requirement to “maintain [his] residence as approved by the probation officer and not change [his] residence without written approval of the probation officer” is unconstitutionally overbroad and impermissibly restricts his right to travel.

The Court of Appeal agreed in the unpublished case of People v Neel, and the matter is remanded to the trial court with directions to either strike general condition No. 4 or to revise it in a manner consistent with this opinion. In all other respects, the judgment is affirmed.

He relies in large part on People v. Bauer (1989) 211 Cal.App.3d 937, where the First Appellate District, Division Two, found unconstitutional a probation condition that required the defendant to obtain the probation officer’s approval of his residence. (Id. at pp. 943-945.) The condition was evidently intended to prevent the defendant from residing with his overprotective parents. (Id. at p. 944.) The court explained: “The condition is all the more disturbing because it impinges on constitutional entitlements — the right to travel and freedom of association. Rather than being narrowly tailored to interfere as little as possible with these important rights, the restriction is extremely broad. The condition gives the probation officer the discretionary power . . . to banish [the defendant].”

The Supreme Court noted in People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin) that even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.

The probation condition at issue in Olguin was different in key respects from that presented here. First and foremost, the condition in Olguin required the probationer to notify and inform the probation officer, not to obtain prior permission and approval. Second, the dispute in Olguin centered on pets, not residences. Here, in sharp contrast, condition No. 4 confers open-ended authority to the probation officer to prevent defendant from changing his residence.