A joint enforcement strike force issued over $200,000 in administrative fines to nine Contra Costa County restaurants for failing to provide workers’ compensation insurance.

Investigators from the Contra Costa District Attorney’s Office, Department of Industrial Relations’ Labor Commissioner’s Office, and Employment Development Department conducted surprise inspections at Contra Costa County restaurants suspected of deliberately evading the obligation to provide workers’ compensation insurance to employees.

The citations issued by the Labor Commissioner’s Office allege that the restaurants cumulatively employed 55 workers without providing insurance coverage in the event of an injury on the job. The restaurants failed to respond to a warning letter from the District Attorney’s Office in July of 2017.

The nine restaurants who were cited are::
– Meson Azteca, 2237 & 2239 Morello Ave., Pleasant Hill ($71,668)
– New Lim’s Garden, 4340 Clayton Rd., Concord ($51,262)
– Dragon City Restaurant, 71 Sand Creek Rd., Brentwood ($28,500)
– La Mordida, 607 Gregory Lane, Ste. 140, Pleasant Hill ($16,500)
– Sushi One, 3111 Balfour Rd., Brentwood ($15,000)
– Sunshine Café, 1908 Oak Park Blvd. Pleasant Hill ($7,500)
– Tacos El Patron, 2290 Monument Blvd., Pleasant Hill ($7,500)
– Grant Street Pub and Pizzeria, 1822 Grant St., Concord ($6,500)
– Sunshine Café, 2227 Railroad Ave, Pittsburg ($4,500)

The Labor Code requires employers to provide workers compensation insurance to cover employees in the event of an on-the-job injury.

District Attorney Diana Becton said, “The District Attorney’s Office is committed to protecting the workers of Contra Costa County. Operations like these are an important part of obtaining compliance before an employee finds out the hard way that their employer did not have coverage for a severe injury.”

“This operation protects employers who are playing by the rules from being undercut by those who don’t,” said California Labor Commissioner Julie A. Su. “We also issued these citations because employees are entitled to workers’ compensation insurance if they are hurt on the job.”

Willful failure to provide the insurance is punishable by substantial fines and misdemeanor criminal prosecution. Employees that do not know whether they are covered can check their employer’s notices board or ask a manager. Labor Code section 3550 requires the employers to post a notice identifying the current insurance at a conspicuous location.

Generic medicines for many common health problems like high blood pressure and diabetes may cost Medicare patients less when they pay cash instead of using their health insurance.

Researchers compared out-of-pocket costs for 30-day supplies of 27 different medications for conditions related to cardiovascular disease. They looked at how often these prescriptions cost more than $4 – the amount charged by Wal-Mart’s drug discount program – when people used one of 622 different standalone Medicare drug plans or one of 1,533 different health insurance plans known as Medicare Advantage.

Half of the time – across all the different medications and types of coverage – at least 21 percent of the Medicare plans required patients to spend more than $4 for covered generic prescriptions.

“We already know from consumer reports that beneficiaries can sometimes get better deals by paying the cash price (without using insurance) at a pharmacy or at a generic drug discount program, rather than paying the co-pay using their insurance, but there wasn’t good data on how this varied across plans,” said senior study author Dr. Joseph Ross, a professor of medicine and public health at Yale University in New Haven, Connecticut.

“Our results demonstrate that a surprising percentage of plans – particularly Medicare Advantage plans – have cost-sharing structures in place that may not give the cheapest option to their beneficiaries for common generic cardiovascular drugs,” Ross said by email. “We know that higher costs lead to lower patient adherence to their medication treatments, which can worsen management of these common cardiovascular conditions if patients are delaying refills because of costs.”

For all of the drugs in the study and all of the various plans, half of the time the out-of-pocket cost was just $2, researchers report in the Annals of Internal Medicine.

Out-of-pocket costs might be lower with Medicare’s stand-alone drug plans than with Medicare Advantage plans, the study also found.

With generic drugs in what’s known as tier one – the lowest-cost prescription drugs – half of the medications cost at least $2 with Medicare Advantage. But with the Medicare drug plans, half of the drugs cost no more than $1.

On higher tiers of benefits that mean higher out-of-pocket costs, medicines cost at least $10 half of the time with Medicare Advantage, compared with $3 for stand-alone drug plans.

A new California Workers’ Compensation Institute (CWCI) analysis offers a preliminary look at Utilization Review (UR) and Independent Medical Review (IMR) outcomes involving pharmaceutical requests for California injured workers since the state implemented a workers’ comp formulary in January of this year,

In October 2015, Governor Brown signed AB 1124 mandating the adoption of an evidence-based formulary for medications prescribed to California injured workers and calling on the state Division of Workers’ Compensation to incorporate the formulary into its Medical Treatment Utilization Schedule (MTUS). The intent of the legislation was twofold: 1) to ensure that medications provided to injured workers meet evidence-based standards; and 2) to reduce delays and frictional costs associated with pharmaceutical UR and IMR.

The CWCI analysis uses data from 141,643 pharmaceutical requests and UR decisions from the first five months of 2017 and 2018, and 58,604 IMR decisions from the first four months of those same two years to measure and compare pre- and post-formulary UR and IMR prescription drug outcomes. Specifically, the study measures the pre- to post-formulary changes in:

– the percentage of Utilization Reviews and Independent Medical Reviews involving pharmaceutical requests;
– the mix of pharmaceutical UR decisions involving requests for drugs categorized by the formulary as Exempt, Non-Exempt, or Not Listed, and – – the UR approval, modification, and denial rates for each category;
– the mix and approval rates for pharmaceutical IMR decisions involving Exempt, Non-Exempt, and Not Listed drugs;
– the proportion of Exempt drugs co-prescribed with Non-Exempt or Not Listed drugs that were reviewed by UR and IMR; and
– the proportion of UR and IMR decisions involving opioid requests and the UR approval and IMR uphold rates for those requests.

The findings show that the proportion of UR decisions involving prescription drug requests fell from 44.5 percent in the pre-formulary period to 40.7 percent in the first five months of 2018, a relative decline of 8.5 percent.

At the same time, the percentage of UR decisions in which a prescription drug request was denied was unchanged at 14.6 percent, while 85.4 percent were either approved as submitted or approved with a modification.

UR decisions involving opioid requests showed little change, edging down from 30.6 percent in the pre-formulary period to 30.0 percent after the formulary took effect, though the UR approval rate for opioids showed a sharper decline, falling from 72.3 percent to 68.8 percent.

Meanwhile, the percentage of IMR decisions involving UR modifications or denials of opioids increased from 29.2 percent prior to the formulary’s implementation to 33.6 percent under the formulary, while the IMR uphold rate for opioid modifications or denials showed a modest increase, rising from 90.1 percent to 91.4 percent.

The Institute study represents only a preliminary look at pharmaceutical UR and IMR data from the first few months that system stakeholders were transitioning into the formulary.

More time is needed to identify changes in prescribing patterns and other aspects of the formulary regulations that could impact UR and IMR disputes, so CWCI will continue to monitor the results and take an expanded look at first-year formulary outcomes in a study scheduled for 2019. In the meantime,

CWCI has issued its initial analysis in a Spotlight Report, “Initial UR and IMR Prescription Drug Outcomes Under the California Workers’ Comp Formulary.”

It is at least the second time a workers’ compensation judge in New Jersey has ruled in favor of a petitioner asking his employer to foot the bill for medical marijuana.

The New Jersey Law Journal reports that a workers’ compensation judge has ordered a New Jersey municipality to pay for an injured worker’s medical marijuana, brushing aside an insurance carrier’s objections stemming from the drug’s status as a controlled substance under federal law.

It is at least the second time a workers’ compensation judge in New Jersey has ruled in favor of a worker asking his employer to foot the bill for medical marijuana. But for insurance companies who write workers’ compensation policies for employers reluctant to jump on the cannabis bandwagon, concerns over the disparity between state and federal law remains.

Workers’ Compensation Judge Lionel Simon ruled on June 28 that Freehold Township must pay for medical marijuana for Steven McNeary, who suffers from muscular spasticity, according to documents. The ruling was first reported in the blog of open government activist John Paff.

A lawyer for carrier PMA Group argued that New Jersey’s medical marijuana law is pre-empted by federal law designating it as illegal, and also cited a recent ruling from the Maine Supreme Court holding that an insurance carrier can’t be ordered to pay for marijuana when it is prohibited under federal law.

Lawyers for PMA Group and for another carrier in the Freehold case, Qual-Lynx, aren’t saying whether they’ll appeal.

Simon’s ruling in McNeary v. Township of Freehold is at least the second in which a workers’ compensation judge in New Jersey ordered an employer to pick up the bill for medical marijuana use by an injured worker. In December 2016, Judge Ingrid French ordered the carrier for 84 Lumber to pay for medical marijuana used by Andrew Watson, who suffered a hand injury on the job. The insurance carrier for 84 Lumber did not appeal that ruling, said Philip Faccenda, the Cherry Hill attorney who represented petitioner Andrew Watson.

In the Freehold case, Simon declined to follow the Maine court’s June 14 ruling in Bourgoin v. Twin Rivers Paper. In that case, citing the conflict between Maine’s medical marijuana law and the federal Controlled Substances Act, the court overruled a lower court that ordered a carrier to pay for marijuana for an injured worker.

The Maine ruling discusses at length the penalties an employer and insurance company could face for violating the Controlled Substances Act, and workers’ comp underwriters are “going to take note and take it into account when they’re making policy decisions,” Kutner said.

The judge in the Freehold case said that both state and federal drug laws were intended to curb the distribution and use of illicit drugs and curtail drug-related crime.

“I don’t  think the New Jersey Medical Marijuana Act is in conflict with that. Certainly I don’t understand how a carrier who will never possess, never distribute, never intend to distribute these products, who will merely sign a check into an attorney’s trust account, is in any way complicit with the distribution of illegal narcotics,” he said, according to a transcript. “What else is important to note here is in this, Mr. McNeary’s case, there is a documented medical need and the concern is that Mr. McNeary is going to become addicted to opioids.”

The Workers’ Compensation Appeals Board has approved new and updated subpoena forms.The fillable forms are posted on the DWC website and will also be made available at the district offices.

There are two types of subpoenas. The first, called subpoena, compels a person to testify before a court, or other legal authority.

The second, called subpoena duces tecum (pronounced “doo-seez tee-kum”), requires a person to produce documents, materials, or other tangible evidence. A subpoena may be requested in any kind of litigation. But these new subpoenas are to direct the appearance of persons or the production of documents or other tangible things before the Workers’ Compensation Appeals Board.

Subpoenas can also be used to compel the attendance of a witness or the production of documents at a deposition.

There is now a new form for a Subpoena (DWC WCAB 30), as well as a new form for a Subpoena Duces Tecum (DWC WCAB 32)

Both a subpoena and a subpoena duces tecum require personal service of the subpoena on the witness. Service of a subpoena should be accomplished by a registered process server, or peace officer. There are alternatives such as when the witness agrees to accept the subpoena in some other way, or to voluntarily appear and produce.

Service of subpoenas may be costly and time consuming.

An alternative to actually physically serving a subpoena on a party, is a process known as a “Notice to Appear” or “Notice to Produce.”

One of the WCAB Rules of Practice and Procedure (California Code of Regulations, Title 8, Section 10532) states that “A notice to appear or produce in accordance with Code of Civil Procedure Section 1987 is permissible in proceedings before the Workers’ Compensation Appeals Board.”

CCP Section 1987 then specifies that service of a subpoena on “a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person,” is not required if you use a Notice to Appear more than 10 days before appearance is required. And documents can be required by way of a Notice to Produce if served more than 20 days before required.” However a Notice to Appear and Produce cannot be used on a non-party. Non-parties must always be served with a subpoena.

There are other requirements specified in CCP Section 1987 that must be carefully followed to use this alternative.