In 2008, Brandon Clark suffered back, head, neck and chest injuries when he fell from a roof while working for South Coast Framing. Brandon’s workers’ compensation physician prescribed amitriptyline, gabapentin (Neurontin) and hyrdrocodone (Vicodin) for his injuries. Brandon was also taking Xanax and Ambien, which were prescribed by his personal physician in January 2009. Xanax was prescribed for “ongoing anxiety,” and Ambien was prescribed for sleeping difficulties. Brandon’s personal physician noted that Brandon was “having problems sleeping. This [was] occurring at least 3 or 4 times a week . . . . During these times, [Brandon was] not aware of anxiety or . . . pain.”

In July 2009, Brandon died from the combined effects of amitriptyline, gabapentin, Xanax and Ambien, and associated early pneumonia. Brandon’s wife, Jovelyn Clark, and their three minor children filed a claim for death benefits alleging the death was the result of the injury and industrially prescribed medications.

The claimant supported her claim with the report of Dr. Bressler who concluded that “[Brandon’s] death was secondary to an accidental overdose.” In reaching this conclusion, Dr. Bressler stated, “[t]he specific combination of medicines [Brandon] was on, which included Xanax, Ambien, Flexeril, Neurontin, amitriptyline, and hydrocodone, all separately and in combination had the capacity to induce respiratory depression, and even respiratory arrest.” Thus there was a mixed cause of both industrial and non-industrially prescribed medications.

However the agreed medical examiner, Dr. Thomas C. Bruff, had a more detailed analysis of the interaction of the industrial and non-industrial drugs. “While there is some difference of opinion on therapeutic and toxic levels of the medications in this particular case, several conclusions can be made. While [Brandon] was prescribed a number of medications only amitriptyline, zolpidem, alprazolam, gabapentin, and acetaminophen were found in peripheral blood specimen. Gastric specimens showed both alprazolam and zolpidem. It is my opinion that gabapentin did not have a role in this particular case. Amitriptyline was prescribed in such low dose, and bloods levels show that the medication was likely taken as prescribed. However, zolpidem [(Ambien)] and alprazolam [(Xanax)] was found in excess of what would be normally considered peripheral blood concentrations. Both these medications work in a similar fashion and would be considered at least additive in their effects. It is my opinion in the case of [Brandon] that it is just this additive effect of zolpidem and alprazolam that caused sedation significant enough to result in the events leading to his death.”

“For clarity, it is my opinion that [Brandon] passed away as a result of the additive drug interaction between zolpidem and alprazolam. The two additional medications present in the bloodstream, gabapentin and amitriptyline, were not high enough to result in any coincident drug interaction.”

During his deposition Dr. Bruff recognized the limitations of toxicology by noting that mixtures of drugs are difficult to quantify. After repeatedly being pushed to calculate the percentage of amitriptyline’s contribution to Brandon’s death, Dr. Bruff stressed that no medical person could offer a precise percentage because “it would be closing your eyes and throwing a dart at a dartboard.”

A workers’ compensation judge concluded that Brandon Clark died as a result of medications he took after suffering an industrial injury. South Coast and its insurance carrier, Redwood Fire and Casualty Company administered by Berkshire Hathaway Homestate Companies petitioned for writ of review after the Workers’ Compensation Appeals Board denied reconsideration of the WCJ’s decision in favor of Brandon’s wife and children.  The Court of Appeal in the unpublished case of South Coast Framing v WCAB (Clark) concluded that the Board erred in denying reconsideration because the WCJ’s decision was not supported by substantial evidence. A physician’s report and testimony must demonstrate his opinion is based on “reasonable medical probability.” The Court supported the reversal on the following analysis.

“Here, Dr. Bruff admitted that it is difficult to make a “reasonable medical analysis” regarding amitriptyline’s precise contribution to Brandon’s death. He also stated that making that kind of determination ‘really gets to be speculative.’  Liberally construing Dr. Bruff’s testimony and report in its totality, we conclude the evidence did not establish industrial causation. Rather, the evidence demonstrates that if amitriptyline played a role at all, it was not significant such that it constituted a material factor contributing to Brandon’s death.”

“Lastly, we note that there is some dispute regarding whether Brandon was taking Ambien due to his industrial injury. Jovelyn testified that Brandon had trouble sleeping before his industrial injury and used Tylenol PM to help him sleep. However, the Tylenol PM was not working. In January 2009, Brandon’s personal physician prescribed him Ambien for his sleeping difficulties. The physician noted that Brandon was not experiencing pain during the times he had trouble sleeping. Brandon’s medical record indicates that around the same time, he used “pain medication mostly at night to help him get comfortable for sleep.” Based on our review of the record, the evidence is insufficient to establish that Brandon used Ambien as a result of pain from his industrial injury.”

Accordingly, the order denying reconsideration was annulled and the matter is remanded to the Board with directions to enter a new order denying the claim.

The PACER information on the Angelotti Chirporactic case reflects that the plaintiffs have appealed to the 9th Circuit Court of Appeals with respect to the two (of the three) causes of actions that were dismissed. The transcripts are being prepared. Surprisingly, there not yet any effort on behalf of the DWC to appeal the adverse ruling on the one cause of action that was favorable to the lien claimants. Plaintiffs are far more responsive and aggressive in the litigation thus far than is the DWC.

With respect to the hearing in December, here is the current docket entry. “The Court, on its own motion, CONTINUES the Status Conference previously scheduled for 12/23/2013 to 1/16/2014 at 08:30 AM before Judge George H. Wu.”

Thus the December 23 hearing will now take place on January 16. Nothing earth shattering will take place at a status conference. It operates much as it is named, except you must file a status documentation ahead of time. At the status conference, Judge Wu will remove frivolous planned activities, and cut to the chase. Essentially, there is likely no need for an evidentiary trial, as there is no significant factual dispute. If there is a factual dispute, Wu will likely order the parties to take depositions, or get affidavits of any potential witness, and will ultimately gear this case up for decision by way of summary judgment.

Thus, either at this status conference, or the next, the conclusion will likely be that there is nothing left to do to decide the case, and that the decision can be accomplished by way of summary judgment, and the case will simply be submitted

Meanwhile the dismissal of two of the three causes of action will be argued before the 9th Circuit Court of Appeals, It is not yet clear if the DWC will appeal the rruling granting a preliminary injunction precluding enforcement of the lien activation fee in January.

Dr. Richard Thorp, president of the California Medical Association says that an estimated seven out of every 10 physicians in California are rebelling against the state’s Obamacare health insurance exchange and won’t participate. Thorp has been a primary care doctor for 38 years in a small town 90 miles north of Sacramento. The CMA represents 38,000 of the roughly 104,000 doctors in California. “We need some recognition that we’re doing a service to the community. But we can’t do it for free. And we can’t do it at a loss. No other business would do that,” he said.

According to the story in the Washington Examiner, California offers one of the lowest government reimbursement rates in the country — 30 percent lower than federal Medicare payments. And reimbursement rates for some procedures are even lower. In other states, Medicare pays doctors $76 for return-office visits. But in California, Medi-Cal’s reimbursement is $24, according to Dr. Theodore M. Mazer, a San Diego ear, nose and throat doctor. In other states, doctors receive between $500 to $700 to perform a tonsillectomy. In California, they get $160, Mazer added.

Only in September did insurance companies disclose that their rates would be pegged to California’s Medicaid plan, called Medi-Cal. That’s driven many doctors to just say no.

They’re also pointing out that Covered California’s website lists many doctors as participants when they aren’t. “Some physicians have been put in the network and they were included basically without their permission,” Lisa Folberg said. She is a CMA’s vice president of medical and regulatory Policy. “They may be listed as actually participating, but not of their own volition,” said Donald Waters, executive director of the Alameda-Contra Costa Medical Association. Waters’ group represents 3,100 doctors in the East Bay area that includes Oakland, with an estimated 200,000 uninsured individuals. “This is a dirty little secret that is not really talked about as they promote Covered California,” Waters said. He called the exchange’s doctors list a “shell game” because “the vast majority” of his doctors are not participating.

Independent insurance brokers who work with both insurance companies and doctor networks estimate that about 70 percent of California’s 104,000 licensed doctors are boycotting the exchange. Mazer, a past president of the San Diego County Medical Society, agreed, saying, “I cannot find anybody in my specialty in the area that has signed a contract directly with any of these plans. The real question,” Mazer added, “is how many doctors have signed up for how many programs, and whether there’s more than 50 percent participation.”

Dr. Sherry Franklin, a pediatric endocrinologist at Rady’s Children’s Hospital, San Diego, and at the University of California San Diego Hospital, isn’t joining the exchange. Franklin said last summer she “got a letter in the mail letting me know if I wanted to participate with Blue Cross through the exchange, which is different from my regular Blue Cross practice, because they are paying less. They did not tell me how much less. You had to agree or disagree. So, of course, I said no.”

For its part, Covered California expects as many as 85 percent of the state’s doctors will join the new exchange. “The Covered California board says we have plenty of doctors, and they allege they have 85 percent of doctors participating,” notes Mazer. “But they’ve shown no numbers.” The exchange issued a May release making that claim before doctors could respond to a memorandum of understanding from insurers. Most didn’t because the MOU lacked reimbursement rates. “When they sent out MOU information and said, ‘Would you be willing to participate?’ earlier this year, most of us said, ‘How about sending us the rates?’ ” Mazer recalled. Mazer said that not only are many doctors not participating, but many are also thinking of retiring. “I just turned 55, and a lot of us are kind of going, ‘Maybe there’s something else we can do in the last 10 years,’ because this is just getting too onerous to keep on going.”

If a large number of doctors either balk at participating in the exchange or retire, the state’s medical system could be overwhelmed. No one is more aware of this than Alex Briscoe, health director for Alameda County Health Care Services Agency, which includes Oakland. “Enrollment doesn’t mean access, because there aren’t enough doctors to take the low rates of Medicaid,” he said. “There aren’t enough primary care physicians, period.” Briscoe hopes his eight community health centers can handle the 200,000 uninsured individuals he said reside in his county, but he warned that “there is a doctor shortage. It is going to get worse as more people enter the market.” Briscoe professed not to be surprised by the refusal of doctors to participate in Covered California. “It rings true. I’ve been kind of wondering in my head, ‘How are they offering such low premiums?”

On December 4, 2013 Richard Lopez Escamilla Jr. 47, was sentenced in Kings County Superior Court to one felony count of insurance fraud and was ordered to pay restitution of nearly $4.2 million to SCIF, SeaBright Insurance and the Employment Development Department. Escamilla was also sentenced to serve six years in prison for defrauding two insurance companies by underreporting employee payroll and unemployment insurance tax evasion.

He operated businesses under several names including ROC Harvesting, EC Labor, EC Labor Inc., and ES Labor. He often changed the names of his businesses to pretend to be a new business in order to lower his premiums.

The department of Insurance said that he was accused of illegally reducing his workers comp premiums by underreporting employee payrolls for his farm labor contracting company, as well as misrepresenting previous comp claims for the firm.

“This is a win for California consumers, insurers and taxpayers,” said Insurance Commissioner Dave Jones. “This case isn’t just about one crook who stole from two insurance companies, business owners across the state end up paying the real price for workers’ compensation fraud through higher premiums and those costs are passed to consumers.”

The conviction was the result of a joint investigation with the The San Joaquin Valley Premium Task Force, the King’s County district attorney’s office and the Employment Development Department.

Many workers’ compensation (WC) claims result in no payment from the WC system, but do lead to increased costs for employee group insurance plans, reports a study in the December Journal of Occupational and Environmental Medicine, official publication of the American College of Occupational and Environmental Medicine (ACOEM).

Nationwide, so-called zero-cost WC claims could cost group health insurance plans more than $200 million per year, according to the study by Abay Asfaw, PhD, and colleagues of the National Institute for Occupational Safety and Health.

The researchers analyzed data on more than 12,000 injured workers who filed for WC insurance from 2002 through 2005. Sixteen percent of the claims were “zero-cost” claims – that is, they resulted in no WC payments. Use of and payments from the employees’ group health insurance increased after WC claims. That was so for zero-cost claims as well as claims resulting in payments. But the zero-cost claims were associated with significantly greater increases in costs to group health insurance, after adjustment for other factors. The increase was largest for outpatient care, with an estimated increase of approximately $400 per claim.

“Our national estimated showed that zero-cost WC claims added $212 million in medical bills to group health insurance per year,” the researchers write. Because their data may miss some occupational injuries, they suspect the true economic impact is even higher.

The study adds to previous evidence suggesting that non-WC insurance – including not only employee health plans but also public insurance – cover at least part of the costs of work-related injury and illnesses. “If WC provides inadequate coverage – workers will seek treatment using other insurance,” Dr Asfaw and coauthors conclude. “Our key finding is that zero-cost WC medical claims have repercussions for other insurance systems and society, and their economic implications are substantial.”

This study quantifies and illustrates an employers quagmire. A zero dollar comp claim is not really zero dollars. It is in actuality cost shifting, not necessarily cost saving. Large employers pay the costs of all forms of employee benefits including group health care. For those employers aggressive defense of an AOE-COE issue in the comp forum may produce illusory savings if that cost is simply shifted to another employer funded program. The bigger picture may be a view that an injured worker is a costly problem no matter which of the employer’s pockets pays the cost. Thus aggressively rapidly solving the medical issues may be less costly in the long run than a strategy that simply pushes the cost from one employer program to another.