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DWC Publishes Reminder to Use New QME Form 105

The Division of Workers’ Compensation sent a reminder email message urging parties to use the revised version of the QME Form 105 that became effective October 1, 2015.

The QME Form 105 is used to request a panel Qualified Medical Evaluator (QME) examination for an unrepresented injured worker. Claims administrators are required to send the current form to injured workers when the claim is disputed or when there is a dispute to the Primary Treating Physician’s report.

The QME Form 105 and instructions for its completion are posted on the DWC website. A Spanish-language version of the form and instructions are also available. The old forms have been removed from the website.

The approved regulations simplified the QME Form 105 for unrepresented injured workers, which must still be mailed to the DWC Medical Unit for processing.

Long-Acting Surgical Opioid Implant May Become Long-Term Comp Cost

An article published in Business Insurance says that a U.S. Food and Drug Administration committee’s vote in favor of approving a long-acting, rod-shaped drug implant to combat opioid addiction could mean added costs for workers compensation payers.

In a 12-5 vote last week, the FDA’s Psychopharmacologic Drugs Advisory Committee approved Probuphine. The implant, by South San Francisco, California-based Titan Pharmaceuticals Inc. and Princeton, New Jersey-based Braeburn Pharmaceuticals, which is surgically inserted under the skin of the arm, can help reduce opioid dependence by delivering a daily dose of buprenorphine for up to six months.

Probuphine is a version of buprenorphine, which federal law classifies as a Schedule III controlled substance. Buprenorphine is a “widely accepted tool to help people taper from opioids” that already is available in tablet and film formulations, Mark Pew, senior vice president at Duluth, Georgia-based medical management company PRIUM, said in an email. “In a perfect world, the buprenorphine is added to discontinue the opioids, and then the buprenorphine is itself discontinued,” Mr. Pew said. “However, since we don’t live in a perfect world, often the buprenorphine stays long-term.”

Titan Pharmaceuticals submitted a new drug application for Probuphine to the FDA in 2012, but the agency decided against approving the treatment since the dose provided was too low to be effective for patients new to buprenorphine treatment. This time around, the advisory committee expressed concerns about whether physicians would be sufficiently trained on surgically inserting the rod, saying “provider qualification and training should be better defined.”

Mr. Pew said the implant could become a “long-term cost consideration” for workers comp payers. “If Probuphine becomes a long-term strategy for pain management, it could be a very expensive addition,” Mr. Pew added. “If all other drugs were tapered appropriately, then the payer may be swapping one cost for another, and that may or may not be a cost-efficient swap.”

The FDA, which is scheduled to make a decision by Feb. 27, isn’t obligated to follow the committee’s recommendation.

Kia Dancing Hamster Convicted of Disability Fraud

The Los Angeles County District Attorney’s Office announced that a 29-year-old man who portrayed a dancing hamster in car commercials pleaded no contest to insurance fraud.

Leroy Barnes, who was arrested in 2014, entered his no contest plea to one count each of insurance fraud and false statements regarding aid. Los Angeles County Superior Court Judge Norm Shapiro immediately sentenced Barnes to 90 days of electronic monitoring. Barnes also was ordered to perform 400 hours of community service and pay more than $24,000 in restitution.

Barnes, best known for playing one of the hip-hop hamsters in the popular Kia car commercials, received disability benefits between September 2010 and September 2011. During that time, Barnes claimed he was not employed but was actually working on the Kia commercials. He is also professionally known by the alternate names: Leroy ‘Hypnosis’ Barnes Jr.; Leroy Barnes Jr.; Leroy ‘Hypnosis’ Barnes; MoWii and the Rej3ctz

Barnes said he was struck and injured by a falling piece of ceiling in June 2010 while dancing for a theatrical production company, He then began receiving disability benefits from the Employment Development Department after seeing a doctor in July 2010. The doctor diagnosed Barnes with a sprain, strain and joint dysfunction of the thoracic spine and irritation to the eye. His disability claim was extended every few months because Barnes continued to say that he was hurt.

However Barnes began dancing intermittently in September 2010 and continued to dance until benefits ended in September 2011. In addition to the Kia commercial, he also worked as a backup dancer for pop stars Madonna, Kelly Rowland and Chris Brown, and a rap group called The Rej3ctz and assisted in recording the song Cat Daddy. During this same timeframe he collected $51,000 in workers’ compensation benefits.

Study Finds Surgeries Under Workers Compensation Have More Than Double Time Off

Receiving Workers’ Compensation benefits has been associated with inferior outcomes after lumbar fusion. The purpose of this new study was to compare the outcomes of cervical disc arthroplasty between patients receiving and those not receiving Workers’ Compensation. The results were published in the Journal of Bone and Joint Surgery.

The researchers examined data on 189 patients who underwent cervical disc arthroplasty; 144 patients received workers’ compensation while 45 did not. The researchers found:

1. The average patient-reported measures were significantly improved one year after surgery for both groups. Workers’ compensation and non-workers compensation groups reported similar outcomes.
2. The rate of operations was similar between the two groups – 7.6 percent received workers’ compensation compared with 13.3 percent of those who didn’t receive workers compensation.
3. The complication rates were similar between the two groups – 2.8 percent for the workers compensation patients compared with 4.4 percent of the non-workers compensation patients.
4. The return to work rate was 77.7 percent for the workers compensation group and 79.4 percent for the non-workers compensation patients.
5. However, the patients receiving workers compensation reported significantly more days off – 145.2 days off – compared with the non-workers compensation patients who took off 61.9 days.

The researchers concluded that after cervical disc arthroplasty, patients receiving Workers’ Compensation had outcomes that were similar to those of patients not receiving Workers’ Compensation in terms of patient-reported outcomes, surgery-related complications, reoperations, and return-to-work status. But, patients receiving Workers’ Compensation remained off work for a longer interval than did patients not receiving Workers’ Compensation.

Court of Appeal Rejects “Daubert” Evidentiary Standard in Comp Death Case

Armando Tavares had been employed by Luis Scattini & Sons for three to four years before his death. He worked as a tractor driver on a seasonal basis and drove a tractor approximately 10 hours a day. Tavares sometimes worked as many as 12 hours a day, and he was a dedicated and conscientious employee.

In 2011 while he was pressure washing the mud off the tractor and disc one morning while at work he told his foreman that he was having chest pain. He asked to use the restroom before he went to the doctor. He went into the portable toilet, but he did not come out. Co workers called 911 and first responders pronounced his death after resuscitation efforts failed. A pathology report indicated he died as a result of ischemic heart disease due to coronary artery atherosclerosis (heart attack due to hardening and narrowing of arteries which supply the heart muscle).

His widow and dependent children were awarded $320,000 in death benefits after a hearing that determined the death was AOE-COE. The WCJ based the finding on the opinion of two doctors who “agree that Mr. Tavares’[s] heart attack was caused by the physical strain he exerted while using the restroom facilities at work.” Reconsideration was denied, and the award was affirmed by the court of appeal in the unpublished case of Star Insurance Company v WCAB and Maria Rosa Tavares.

Star Insurance asserted that this case presents an opportunity for the court to clarify whether workers’ compensation cases are exempt from the higher evidentiary standards set forth in the federal case of Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 (Daubert). Petitioner argues that the Daubert standard should be applied generally to workers’ compensation matters and particularly to the medical evidence in this case. The Daubert standard provides a rule of evidence regarding the admissibility of expert witnesses’ testimony during United States federal legal proceedings. The Daubert standard is now the law in federal court and over half of the states. However the much lower Frye standard remains the law in some jurisdictions including California, Illinois, Maryland, New Jersey, Pennsylvania, and Washington.

After noting that the petitioner did not raise this evidentiary issue in its petition for reconsideration, and that Section 5904 provides: “The petitioner for reconsideration shall be deemed to have finally waived all objections, irregularities, and illegalities concerning the matter upon which the reconsideration is sought other than those set forth in the petition for reconsideration.” Accordingly, petitioner may not raise the issue for the first time on in its petition for writ of review. (See Nicky Blair’s Restaurant v. Workers’ Comp. Appeals Bd. (1980) 109 Cal.App.3d 941, 959.)” The court went on to reject this contention on the merits.

“All hearings and investigations before the appeals board or a workers’ compensation judge are governed by [Division 4 of the Labor Code] and by the rules of practice and procedures adopted by the appeals board.” (§ 5708.) The Board and workers’ compensation judges are not “bound by the common law or statutory rules of evidence and procedure . . . .” (Ibid.) Section 5709 provides: “No informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division. No order, decision, award, or rule shall be invalidated because of the admission into the record, and use as proof of any fact in dispute, of any evidence not admissible under the common law or statutory rules of evidence and procedure.” It is simply not the province of this court to establish evidentiary rules for workers’ compensation proceedings. (Cf. South Coast Framing, supra, 61 Cal.4th at p. 307.)

Owner Operator of Three LA Medical Clinics Goes to Prison

The former owner and operator of three medical clinics located in Los Angeles was sentenced to 78 months in prison for his role in a scheme that submitted more than $4.5 million in fraudulent claims to Medicare.

Hovik Simitian, 48, of Los Angeles, pleaded guilty to one count of conspiracy to commit health care fraud on Aug. 18, 2015, and was sentenced this month by U.S. District Court Judge Beverly Reid O’Connell of the Central District of California, who also ordered Simitian to pay $1,668,559 in restitution to Medicare.

Simitian owned and operated Columbia Medical Group Inc., Life Care Medical Clinic and Safe Health Medical Clinic, three medical clinics in Los Angeles. In connection with his guilty plea, Simitian admitted that from approximately February 2010 through June 2014, he and his co-conspirators paid illegal cash kickbacks to patient recruiters who brought Medicare beneficiaries to the clinics. Simitian also admitted that he and his co-conspirators then billed Medicare for lab tests and other services that were not medically necessary or were not actually provided to the Medicare beneficiaries, which they supported with false documentation they created. Simitian admitted that he submitted a total of $4,526,791 in false and fraudulent claims to Medicare and Medicare paid $1,668,559 on those claims.

The FBI and HHS-OIG investigated the case, which was brought as part of the Medicare Fraud Strike Force, supervised by the Criminal Division’s Fraud Section and the U.S. Attorney’s Office of the Central District of California. Trial Attorneys Blanca Quintero and Alexander F. Porter of the Criminal Division’s Fraud Section are prosecuting the case.

Assistant Attorney General Leslie R. Caldwell of the Justice Department’s Criminal Division, U.S. Attorney Eileen M. Decker of the Central District of California, Assistant Director in Charge David Bowdich of the FBI’s Los Angeles Division and Special Agent in Charge Chris Schrank of the U.S. Department of Health and Human Services Office of the Inspector General (HHS-OIG) Los Angeles Region made the announcement.

DWC Adjusts OMFS (Physician/Non-Physician Practitioner Services)

The Division of Workers’ Compensation has posted an order adjusting the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1.

The CMS Medicare National Physician Fee Schedule Relative Value File that was initially released for the January 2016 update, and which was adopted by the Administrative Director’s order of November 30, 2015, has been revised by CMS to correct technical errors. The Administrative Director has adopted the revised RVU file for services rendered on or after January 1, 2016.

The Administrative Director has also adopted and posted the monthly Medi-Cal rates file update for physician-administered drugs, biologicals, vaccines or blood products, effective for services rendered on or after January 15, 2016.

The order adopting the updates, the text of regulations, and the Medi-Cal rates file can be found on the DWC website.

County of Los Angeles Claim Costs Skyrocket

The total of all costs related to County of Los Angeles liability and workers’ compensation claims increased by $45.0 million to $577.5 million, which represents an 8.4 percent increase over FY 2013-14. Hilda Solis, chair of the Los Angeles County Board of Supervisors, said in a statement that the increase is “an urgent call for introspection and action.” She added that she was “particularly concerned” with the costs of defending the Sheriff’s Department in excessive-force and officer-involved shooting cases.

The County’s Self-insured Workers’ Compensation Claim Administration Program is the largest local governmental program in the State of California. It is responsible for administering over 27,500 open workers’ compensation claims with approximately 11,000 new workers’ compensation claims reported annually. The Risk Manager’s Message stated “as the largest risk cost driver for the County, the Workers’ Compensation system continues to be the main focus for this fiscal year.

The cost of county workers’ compensation claims rose from $342.2 million in 2014 to $359.3 million last year despite the decrease in claims by 395 to 10,550, which represents a 3.6 percent decrease over FY 2013-14. The increased cost of claims is attributed to the statutory increase in weekly permanent disability rates since medical expenses and temporary disability benefits showed modest decreases.

The Sheriff’s Department made up the largest share of those payouts, with $123.7 million in 2015, up from $110.6 million the year before. If that were not bad enough, the cost of lawsuits against the Los Angeles County Sheriff’s Department jumped 50% from 2014 to 2015 – an increase driven largely by multimillion-dollar payouts in excessive-force and jail death cases.

Medical expenses are the largest single component of the workers’ compensation program cost. During FY 2014-15, the Program received over 409,000 bills from medical service providers. Back in FY 2011-12, a PBM was established to improve the evaluation of drug therapies prescribed to County injured workers. Evaluating the final quarter of FY 2014-15 against program inception baseline data demonstrates the increased utilization of generic drugs to 78.7% (an increase of 18.4% over the baseline). Increased home delivery to 14.2% (an increase of 75.3% over the baseline). And increased PBM Network penetration to 92.5% (an increase of 35.2% over the baseline).

In FY 2012-13, pharmacists from the PBM identified significant use of costly compound medications on the workers’ compensation program. CEO staff utilized data mining capabilities provided by the PBM to identify questionable compound medication prescription patterns. In FY 2014-15, efforts continued to reduce the use and costs of unwarranted compound medication by focused utilization review protocols.

Employment Practices Liability (non-Workers’ Compensation) claims increased by 35 to 193, which represents a 22.1 percent increase over FY 2013-14. The cost of claims and lawsuits increased by $7.1 million to $21.1 million, which represents a 50.5 percent increase over FY 2013-14. Six claims had expenses greater than $500,000 and represented 35 percent of this total ($7.5 million). These allegations include wrongful termination, whistleblower, sexual harassment, and failure to promote.

List Price of Pharmaceuticals Continue Relentless Increases

With a backlash brewing over the price of medicines in the United States, drugmakers are pushing back with a new message: Most people don’t pay retail. Top executives from Eli Lilly, Merck and Biogen said in interviews with Reuters this week that the media focus on retail, or “list prices,” for branded medications is misplaced. They stressed that the actual prices paid by prescription benefit managers, insurers and other large purchasers are reduced through negotiated discounts.

A couple of dramatic price hikes in 2015 exposed the whole industry to ongoing scrutiny in Congress and on Wall Street. Turing Pharmaceuticals raised the price of a generic anti-infective drug called Daraprim by 5,000 percent, and the larger Valeant Pharmaceuticals International raised the price on a heart drug Isuprel by more than 200 percent.

The largest drugmakers quickly portrayed those cases as outliers. But the industry practice of raising prices each year for treatments used by millions of people is attracting new attention.

Adam Schechter, Merck’s president of Global Human Health, said the industry needs to better explain the value of drugs and how they can prevent healthcare costs down the line. “We have to explain the difference between the list price and the net price,” he said in an interview.Toward that end, two drugmakers at the JP Morgan Healthcare Conference in San Francisco this week shared with Reuters some limited information on actual pricing.

Eli Lilly said the actual average price increase on Humalog, its injectable insulin used to treat diabetes, has been a modest 1 to 2 percent annually over the last five years. The company declined to provide a list price. Horizon Pharma plc, a small drugmaker, raised list prices across its business about 7 percent for this year, Chief Executive Tim Walbert said in an interview. But he said he expects the company’s actual price increases to be 4 percent or less.

More recently, Pfizer, one of the world’s largest drugmakers, raised U.S. list prices on more than 100 drugs as of Jan. 1, according to data from information services company Wolters Kluwer that was published last week by UBS Securities. The list included a 9.4 percent rise for pain drug Lyrica and a nearly 13 percent increase for erectile dysfunction drug Viagra. Pfizer said in an email the prices don’t reflect “considerable discounts” to many payers, but did not provide examples of net prices.

Drugmakers keep actual pricing details close to guard their position in negotiations with commercial insurers and government health plans like Medicaid. There is no centralized catalog of U.S. list prices or rebates for medicines. That drug executives at the San Francisco conference allowed even a glimpse into their actual pricing strategies reflects the intensity of the new attention being paid to their practices.

The candor of some individual pharmaceutical executives follows earlier messaging by industry advocates. In a November blog post, the industry’s main lobbying group PhRMA, reported that list prices grew 13 percent in 2014, but actual prices increased only 5 percent.

U.S. health insurers say that, even accounting for discounts, drug prices are rising at an unsustainable rate, and they are pressuring drugmakers for cuts. “Whether it’s a gross number, or a net number, it is still astronomical,” said Daniel Hilferty, chief executive of Independence Blue Cross, which operates in Pennsylvania and New Jersey.

9th Circuit Affirms Allstate’s $8.6 Million Fraud Judgement

The U.S. Court of Appeals for the 9th Circuit affirmed an $8.6 million judgment in favor of Allstate Insurance Company against former Las Vegas chiropractor Obteen N. Nassiri.

Nassiri began defrauding Allstate in 2003 by exaggerating clinical findings, submitting improbable diagnoses, billing for services not rendered, providing unnecessary and excessive treatment, misrepresenting billing, making inappropriate referrals and exhibiting a general pattern of illegal and fraudulent conduct, according to the Allstate lawsuit, originally filed in 2008 in the U.S. District Court of Nevada.

The Chiropractic Physicians’ Board of Nevada revoked Nassiri’s license in 2010.

“Medical fraud drives up costs for everyone — and in this case it was egregious fraud,” said Melinda Wilson, an Allstate spokesperson. “This is a notice to every fraudster out there: Allstate is going to battle fraud wherever we find it to protect our policyholders and all consumers. We’re gratified the courts in this case continue to help us fight that battle.”

In June 2013, following a 10-day trial, the jury awarded $1.1 million in damages against Obteen N. Nassiri, Advanced Accident Chiropractic Care, ONN Management, Digital Imaging, and Digital X-Ray Services, LLC. Following the trial, the District Court trebled the damages under Federal and Nevada State RICO laws, increasing the award of damages to $3.5 million, and added pre-judgment interest of $1 million. Punitive damages, attorney fees, costs and additional pre-judgment interest were added to the award, increasing the total amount of the judgment to $8.6 million.

Nassiri was the only defendant who appealed the 2013 decision, arguing the District Court erred in admitting the testimony of Allstate’s damages and in denying his motion for summary judgment. The appellate court rejected his contentions and upheld the jury’s decision. The court concluded “Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty . . . it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.”