Janak K. Mehtani M.D. is listed as a QME in psychiatry with an office on Fulton Avenue in Sacramento. He practices psychiatry under the business name Fair Oaks Psychiatric Associates. Recently the California Medical Board filed an Accusation against him complaining about his treatment of industrially injured patients and patients with chronic pain, anxiety, sleep disturbance and other problems.

The First Cause for Discipline alleges that his treatment was “grossly negligent.” The Second Cause alleges that he “he committed repeated negligent acts in his care and treatment” of the Patients described in the Accusation. In the Third Cause that he “prescribed controlled substances and dangerous drugs” to these patients without an appropriate medical examination or medical indication. In the Fourth Cause that he “failed to maintain adequate and accurate medical records in the care and treatment” of these patients. And in the Fifth Cause for Discipline “that he has engaged in conduct which breaches the rules or ethical code of the medical profession, or conduct which is unbecoming a member in good standing of the medical profession, and which demonstrates an unfitness to practice medicine.

These charges are allegations only, and should not be considered to be true or accurate until there has been a trial on the merits and Dr. Mehtani be afforded an opportunity to be heard and present evidence on his behalf.

However the Accusation does set forth what the California Medical Board considers to be the standard of care for industrially injured patients in a psychiatric setting. The standards set forth in this Accusation should be read and understood by claims administrators and other workers’ compensation professionals since this document sets forth standards that are seldom articulated in one document, with illustrative examples. This document should serve as a benchmark or checklist by which quality of treatment should be evaluated. Here are examples of the standards set forth in this Accusation by the California Medical Board.

First and foremost the Accusation reiterates the requirement that medical records clearly document medical findings, histories, complaints, and rationale for treatment decisions. Often this is not seen when reviewing subpoenaed records of treating physicians. For example, one of the patients complained of weight gain, yet the Accusation alleges that “there has been no documentation of Respondent’s discussion of her weight gain. There was no documentation of her diet, exercise, weight or anything that addresses the risk of weight gain associated with psychotropic medications.” Another concern was “Respondent failed to document the reason for prescribing Abilify, Ambien, and Cymbalta. Respondent failed to document and/or identify any concern about the risks of chronic use of a benzodiazepine Xanax and Ambien, which are not recommended for use greater than 60 days.” The Accusation goes on to say “Respondent’s charting is vague and suggests that the dose of Abilify was increased because the patient was having thoughts about cutting. Respondent failed to document what is being treated other than reducing anxiety and his concern about cutting. There is no description or identification of target symptoms, no identified measurable signs or symptoms to assess the progress or lack of progress in treatment. Respondent’s clinical descriptions are vague and difficult to interpret.” Later the Accusation states “Respondent also documented a global statement without providing any clinical justification or explanation. Respondent noted that “She remains disabled from gainful employment” without explaining and documenting exactly what was Patient GC’s disability, how the disability affects her life and what are the barriers for progress”.

The Accusation summarizes another case where the Respondent allegedly did not respond to letters sent by the State Compensation Insurance Fund, and “Respondent failed to document treatment goals and target symptoms so that the progress of treatment could be objectively evaluated. Respondent failed to document clinical reasons when there is a change in treatment,including change of medication as well as the dose.” These factors among others are according to the Board allegedly “gross negligence” and reason to bring disciplinary action against the QME.

The Accusation alleges concern about the lack of an interpreter. The Board alleges that a “medical assistant” was at times used as an interpreter, and during one follow up visit the “interpreter was not notified of the appointment so she was seen without one.” The Accusation alleges that “Respondent failed to provide an interpreter in order for Patient GC to freely share her feelings and be open to psychotherapeutic interventions.” This patient was seen for about 40 visits of “Medical Psychoanalysis.”

While these allegations may or may not be proven against this particular psychiatrist, they nonetheless set forth examples of what the California Medical Board considers to be appropriate care for industrially injured workers with psychiatric complaints, and what the Medical Board consider to be “gross negligence.” This Accusation should serve as a guideline for appropriate record keeping, and care. All too often this is not the case reflected in typical subpoenaed records that are reviewed.

Transportation Network Companies (TNCs) provide for pre-arranged transportation services for compensation through online-enabled applications or platforms (such as smart phone apps) that connect passengers with drivers who provide the services in their personal vehicles. The three most widely used TNCs are UberX (available in 53 countries and more than 140 U.S. cities), Lyft (available in at least 60 locations) and Sidecar (available in Boston; Charlotte, NC; Chicago; Long Beach, Los Angeles, Oakland, Marin and other San Francisco Bay Area cities; San Diego; Seattle; and Washington, DC).

Regulation of TNCs is in its infancy. The first step in regulating TNCs is to determine which state or local entity has authority over TNCs. Regulatory authority varies from state to state. California was the first state to regulate this new industry. Legislation is now pending in at least 35 other states. In California, TNCs are regulated on a statewide level by the California Public Utilities Commission (CPUC), while taxis are regulated by municipalities. The CPUC asserted jurisdiction over TNCs by classifying them as charter-party carriers, or transportation providers that provide pre-arranged services for a fee and are subject to regulation by the CPUC. Limousines and many shuttle services are examples of charter-party carriers. State law delegates authority for regulation of taxis to cities or counties since taxis are not classified as charter-party carriers since their services can be pre-arranged or on demand such as hailing a cab on the street.

The insurance issues associated with TNC activities arise because TNC drivers use personal cars for that commercial activity but do not have commercial auto insurance. The California Department of Insurance held an investigatory hearing March 21, 2014, relating to insurance issues for TNCs. As a result of the hearing, Insurance Commissioner Dave Jones recommended TNCs provide $1 million in primary liability insurance that begins the moment the driver switches on the app. The issue of Worker’s Compensation benefits and insurance has yet to be considered by regulatory bodies.

So now the issue of workers’ compensation coverage must be resolved in the courts. According to an article in Business Insurance, drivers for ride-sharing services Uber Technologies Inc. and Lyft Inc.,argue in two cases that they are employees and not independent contractors. This could put the tech upstarts on the hook for workers compensation costs if court challenges succeed. In separate lawsuits filed in U.S. District Court in San Francisco, plaintiffs seeking to represent Uber and Lyft drivers nationwide base their allegations on California’s labor law, since both Uber and Lyft reference the state’s law in their driver contracts, said Shannon Liss-Riordan, a plaintiff attorney in both cases and a partner at Lichten and Liss-Riordan P.C. in Boston. Judges in both cases have limited the potential classes to drivers in California, but Ms. Liss-Riordan said those decisions likely will be appealed.

If Uber and Lyft drivers are deemed employees, the companies would need to evaluate providing workers comp coverage, said officials at the National Council on Compensation Insurance Inc. Court transcripts are sealed, but, according to wire service reports, in a January hearing in the Lyft case, U.S. District Judge Vince Chhabria said rulings in other California cases typically have found that “people who do the kinds of things that Lyft drivers do here are employees.”  U.S. District Judge Edward Chen reportedly said “I don’t find that a very persuasive argument,”in a separate January hearing in the Uber case, in which the company argues it is a software platform, not an employer. Final rulings have not yet been made in either suit, both of which have been pending since 2013

The insurance industry is watching the cases closely. For example, NCCI identified ride-sharing services as one of the top emerging comp issues for 2015. The National Association of Insurance Commissioners (NAIC) adopted a white paper addressing the insurance coverage gaps associated with ridesharing services offered by Transportation Network Companies. The white paper was issued to assist state insurance regulators and state legislators throughout the United States who are considering how best to address insurance coverage gaps associated with TNCs and ridesharing. The paper recommends a range of potential state based regulatory solutions. Issues including insurance coverage gaps, coverage amounts and types of coverage are discussed, as well as the need for consumer outreach and education regarding these new transportation services.

Citing lower medical loss development, as well as indemnity and medical severities that continue to emerge below expectations, the insurer and public members of the WCIRB Governing Committee voted this week to authorize the WCIRB to submit a mid-year pure premium rate filing to the California Department of Insurance (CDI). The filing will propose a July 1, 2015 advisory pure premium rate of $2.46 per $100 of payroll which is 5.0% lower than the corresponding industry average filed pure premium rate of $2.59 as of January 1, 2015 and 10.2% less than the approved average January 1, 2015 advisory pure premium rate of $2.74.

The Governing Committee’s decision was based on the WCIRB Actuarial Committee’s analysis of insurer loss and loss adjustment experience as of December 31, 2014, which was reviewed at public meetings of the Actuarial Committee held on March 18, 2015 and March 30, 2015. While loss adjustment expenses continue to emerge at levels higher than expected, those higher costs are more than offset by better than projected loss experience. The primary drivers of the indicated reduction in advisory pure premium rates are:

1) Significant improvement in medical loss development since the WCIRB’s amended January 1, 2015 Pure Premium Rate Filing, which decreases the estimates of ultimate historical accident year loss ratios and the resultant future year medical cost projections.
2) Continued decline in the average cost of indemnity and medical on indemnity claims—particularly in the 2014 accident year. For the second consecutive year following the implementation of SB 863, medical severities declined by more than 4%.
3) Significant improvement in accident year 2014 experience, in large part driven by lower than expected severity growth.

The WCIRB anticipates submitting its filing to the CDI by April 6, 2015. The filing and all related documents will be available in the Publication and Filings section of the WCIRB website and the WCIRB will issue a Wire Story once the filing has been submitted. Documents related to the Governing Committee meeting, including the agenda and materials displayed or distributed at the meeting, are available on the Governing Committee page of the WCIRB website.

California joins other states that are announcing rate reductions this month. North Carolina Governor Pat McCrory announced that an average decrease in workers’ compensation insurance premium rates paid by North Carolina businesses will take effect in April 2015. The North Carolina Department of Insurance estimates that 95 percent of the state’s employers will see an average decrease of 3.4 percent in their 2015 premium rate. The remaining 5 percent, which constitutes businesses that purchase coverage through an “assigned risk pool,” will see an average decrease of 4.5 percent. These significant decreases are a welcome change from 2014 premium rates which were 4.2 percent higher than what most employers paid in 2013.

Workers compensation advisory rates will decrease 5.99% for Pennsylvania employers this month, according to Pennsylvania Gov. Tom Wolf. This is the fourth year in a row that Pennsylvania workers comp advisory rates have decreased, according to the governor’s statement.

Private employers in Ohio will see a 10.8% workers compensation rate decrease as of July 1, the Ohio Bureau of Workers’ Compensation said. The 10.8% rate cut, approved by the Ohio Bureau of Workers’ Compensation’s board of directors is expected to yield a $153 million decrease in projected annual premium, the bureau said in a statement.

NPR continues its Special Series “Insult To Injury: America’s Vanishing Worker Protections” arguing that states have nationally eroded workers’ compensation benefits to the point of shifting the burden on taxpayers. The current article features two California workers’ compensation claims it asserts are evidence of how even California has changed its system into an intolerable and unacceptable debacle. One of the claimants, Frances Stevens has her case pending in the Court of Appeal and if successful, will end the IMR process created by SB 863.

NPR reports that “Stevens tripped on a rug and broke her foot as she carried boxes of magazines. The relatively simple break triggered serious nerve damage and she was eventually diagnosed with chronic or complex regional pain syndrome.” She claims to be mostly confined to a wheelchair and the NPR photograph shows her using a custom wheelchair ramp leading to her van. She was awarded total permanent disability.

A dispute arose between Stevens and SCIF about two years ago over her medical care. For several years applicant had the assistance of a home health aide and used certain medications prescribed by Dr. Jamasbi to relieve her symptoms. In late 2012, the home health aide assisting applicant was injured and was unable to continue to provide those services. This led Dr. Jamasbi to submit a Request For Authorization (RFA) to defendant for a new home health aide along with a request to refill four prescriptions which were submitted to UR and denied. The request was also denied after the IMR process which took seven months to complete. In this case, the IMR determination states that that “Medical treatment does not include home maker services like shopping, cleaning, and laundry, and personal care given by home health aides like bathing, dressing, and using the bathroom when this is the only care needed.”

The applicant appealed and the WCJ found there was no provision for a reversal of the IMR finding since the labor code provides only limited circumstances upon which IMR can be reversed. The WCAB denied reconsideration in the panel decision of Stevens vs Outspoken Enterprises Inc. One of the key aspects of the Stevens argument was the constitutionality of the IMR process, an issue the California Applicants Attorney Association has been making since passage of SB 863. In response to this challenge, the WCJ found “While the Constitution confers on the Legislature the power to establish a system of workers’ compensation, section 3.5 of article III of the Constitution withholds from administrative agencies the power to determine the constitutional validity of any statute.” The WCAB agreed that it could not rule on the constitutional issue, and denied reconsideration saying “In sum, for purposes of appeal to the WCAB it does not matter whether the reasons given for an IMR determination support the determination unless the appealing party proves one or more of five grounds for appeal listed by the Legislature in section 4610(h) by clear and convincing evidence. Applicant did not do that in this case. The WCJ’s May 27, 2014 denial of applicant’s IMR appeal is affirmed.”

The First District Court of appeal has agreed to hear the case, and this will be the first appellate court to address the constitutional challenge to the IMR process. Briefs have been filed by a great number of Amicus parties including the California Workers’ Compensation Institute, the Property Casualty Insurers Association of America, the California Chamber of Commerce, Voters Injured at Work and the California Applicants’ Attorneys Association.

By the end of January, 2015 the Court of Appeal asked the parties to address some of the constitutional questions. “Under Article XIV, section 4 of the California Constitution, the Legislature “is expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers’ compensation, by appropriate legislation. . . .” (Cal. Const., art. XIV, § 4 [italics added].) Meanwhile, Article III, section 3 of the California Constitution, governing Separation of Powers, provides: “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” (Cal. Const., art. III, § 3 [italics added].) And Article I, section 7 of the California Constitution provides: “A person may not be deprived of life, liberty or property without due process of law.” ((Cal. Const., art. I, § 7(a).) With these sections of the California Constitution in mind, the Court invites simultaneous supplemental briefing from the parties and amicus curiae on the following issues: 1. Is the plenary power to enact workers compensation statutes vested in the Legislature by the California Constitution limited by the Separation of Powers Clause of the California Constitution? 2. Does the plenary power to enact workers compensation statutes vested in the Legislature by the California Constitution effect our analysis in evaluating petitioner’s claims under the California Constitution’s Due Process Clause?”

Oral arguments have not yet been scheduled in this case, and it will be months before a resolution. This is however the case to watch for 2015 as the stakes are high. Should IMR be declared unconstitutional a major provision of SB 863 sought by employers will evaporate, and medical disputes will return to the level of the WCAB,

Time is running out to enroll in the Floyd, Skeren and Kelly 5th Annual Southern California Employment Law Conference to be held at the Disneyland Hotel on June 19, 2015. Last year more than 300 professional attended this conference. This year guest speakers include Steve Jones, Deputy Labor Commissioner from the California Department of Industrial Relations, Phoebe Liu, Senior Staff Counsel IV Department of Fair Employment and Housing and Shaddi Kamiabipour, Deputy District Attorney with the Insurance Fraud Unit, Orange County DA’s Office.

This full day conference that will offer topics on both Employment Laws and Workers’ Compensation. Some of the topics we will cover are:

1) Mastering California Leave Laws: A Closer Look at Disability Related Leave Laws, Interactive Process, and Accommodation
2) The Latest Information on California’s Paid Sick Leave-Ensure Compliance Before July 1, 2015
3) Preventing Work Comp Fraud in the Workplace
4) Identifying the Key Features of a Successful Interactive Process in Work Comp Cases
5) Understanding and Complying With the New California Family Rights Act Regulations in Effect as of July 1, 2015
6) A Work Comp Case Law and Legislative Update
7) Understanding, Preventing and Responding to Sexual Harassment Claims in the Workplace
8) How to Effectively Manage and Defend Work Comp Claims-Advanced Techniques From the Experts
9) Performance, Discipline and Termination-Best Practices for Avoiding Liability with These Vital HR Actions
10) Work Comp Resignations and Compromise and Release-What are the Legal Implications?
12) Is Your Company Committing Costly Wage and Hour Violations-Important Tips for Ensuring Compliance
13) An Update on the UR and IMR Process
14) Seven Habits of Frequently Sued Employers-Avoid These Costly Mistakes
15) Illegal Drug and Substance Abuse in the Workplace: Key Prevention and Response Strategies
16) Common Employer Mistakes Leading to Work Comp Claims
17) Reviewing Medical Reports and Defending Erroneous Ratings

Early Bird discounted registration is now available online. For further information please visit our event website, or call us at (818) 854-3239