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Tag: 2013 News

Napa Vineyard Worker Jailed in Fraud Case

A 24-year-old vineyard worker was sentenced March 7 in Napa County Superior Court to 45 days in jail for falsely claiming he had broken his hand during a fall at work, according to the Napa County District Attorney’s Office. He was also ordered to pay $1,279 in restitution.

In February 2012, Ivan Ruiz-Hernandez, of Clearlake, had sought medical treatment and reported the incident to his employer, St. Supery Vineyards and Winery, as a job-related injury, authorities said. But investigators found Ruiz-Hernandez had injured himself during a physical fight weeks earlier, according to the Napa County District Attorney’s Office and court records.

The California Department of Insurance reported the incident to the Napa County District Attorney’s Office in June 2012.

Ruiz-Hernandez was arrested Feb. 20 on suspicion of workers’ compensation fraud, according to the Napa County District Attorney’s Office.

On March 7, Ruiz-Hernandez was convicted and sentenced for misdemeanor violations of insurance fraud and making false statements to obtain compensation under a plea agreement reached with the prosecution, according to court records.

Medical Board Fails to Monitor Surgical Centers

The Medical Board of California has largely failed to implement key provisions of a law intended, in part, to provide consumers with better information about physician-owned, outpatient surgery centers according to the article on the Public Radio (KPCC) website. Senate Bill 100 requires the Medical Board of California to “obtain and maintain” a list of accredited outpatient settings, including the names of all doctor-owners and their medical license numbers. The board must post that information on its website, which must also note whether a facility has had its accreditation suspended or revoked. But the medical board has yet to fully implement those provisions, which became law on Jan, 1, 2012. The information is not only hard to locate on the medical board’s site, but that contains a jumble of mostly incomplete records that provide little value to the public.

KPCC reviewed 100 surgery centers listed on the site; only 14 included the name of a doctor-owner, and only five provided the doctor-owner medical license number as required by California Health and Safety Code Section 1248.2 (b). Also missing from most of the records listed was information on whether a surgery center had its accreditation suspended or revoked. Consumers Union also reviewed the listing of surgery centers on the medical board’s website, and got similar results.

“Of the first 25 that came up, 18 of them did not have the name of the doctor who owned it, which is a pretty critical piece of information for consumers and for any kind of accountability,” said Lisa McGiffert, director of Consumer Union’s Safe Patient Project, a national campaign that for the past year has focused on oversight of California’s physician-owned surgery centers.

“This is an absolute failure to comply,” said Los Angeles consumer attorney Kathryn Trepinski, who testified in Sacramento last year on behalf of SB100. Trepinski represents Betty Brown of Torrance, whose sister died in December 2010, three days after undergoing lap-band weight-loss surgery at a physician-owned surgery center in Beverly Hills owned by brothers Michael and Julian Omidi. The Omidis were behind the once-popular 1-800-GET-THIN campaign. Brown has filed a wrongful death lawsuit against the Omidis.Trepinski said she was disturbed to find the website listing for the clinic did not mention the Omidis or any other owners. Without such information, she says, consumers checking out the center may be hard-pressed to learn that the medical board revoked Julian Omidi’s license to practice in 2007 and suspended Michael’s Omidi’s license in 2008, for three years.”People need to know the identities of physicians who own and run these centers so they can check their disciplinary records and their backgrounds,” she said. “This is a key part of patient safety and it’s important public health information.”

In an interview with KPCC, Medical Board of California Executive Director Linda Whitney acknowledged the website is incomplete and problematic. “It’s not the most consumer-friendly, I do admit that,” said Whitney, who noted that the agency is currently carrying out an agency-wide overhaul of its computer system. “So, unfortunately, it has not been the highest priority to refine that website. In the coming year we hope to make it much more consumer friendly,” she said.

Whitney said the website doesn’t have a complete list of surgery centers because her board told accrediting agencies that they don’t have to provide the data on a particular facility until its accreditation comes up for renewal. The agencies hadn’t collected owner information before, so this approach was designed to give them time to figure out best how to get it, she said. But because surgery centers’ accreditation comes up for renewal only once every three years, some of the information won’t get to the medical board – or consumers – until 2015.

The NFL and GE Team Up to Study Football Brain Injuries

The National Football League and General Electric Co are teaming up to improve the diagnosis and treatment of brain injuries amid growing concerns about sports-related concussions in youth and professional sports. According to the story in Reuters, they announced a $60 million effort with leading neurologists to speed up research into brain injuries and the development of new technologies to help protect the brain from traumatic injury to benefit athletes, the military and the broader public. The initiative includes a $40 million research program into imaging technologies to improve diagnoses and an additional $20 million pool of funds open to researchers and businesses trying to improve the prevention, identification and management of brain injuries. “We’re trying to do this with the best minds anywhere in the world,” GE’s chairman and CEO, Jeff Immelt, told a news conference in Fairfield, Connecticut, on Monday.

Among the lawsuits filed against the NFL over concussions is a class action on behalf of 4,000 former professional football players and their wives, which accuses the league of covering up life-altering brain injuries. Many of the former players have filed workers’ compensation cases in California.

The NFL and GE, the largest U.S. conglomerate, will split the investment equally, with a $5 million investment from Under Armour toward a project to develop new materials and technologies to protect the brain from injury and to develop tools to track head impacts and injuries as they happen.

Kevin Plank, the founder and CEO of Under Armour, said one challenge to overcome was a tendency of athletes to downplay injuries for fear they will be prevented from playing. “The fact today is that safety is not that cool,” he said. “Our job is to change that.”

The initiative comes nearly two months after the Institute of Medicine launched a sweeping study of sports-related concussions, particularly those in young people from elementary school through early adulthood. A 2010 study by the U.S. Centers for Disease Control and Prevention (CDC) found that U.S. emergency rooms yearly treat 173,000 temporary brain injuries, including concussions, related to sports or recreation among people less than 19 years old.

In professional sports, the NFL last year adopted stricter rules to determine when players can return to the playing field after suffering a concussion.

Patricia Horoho, the U.S. Army Surgeon General, said she welcomed the NFL-GE initiative, adding that there had been 250,000 brain injuries among Army members since 2000, of which 84 percent were not related to deployment. Possible research areas include looking for genetic markers that could indicate a susceptibility to certain kinds of brain injuries, and developing more consistent treatment and management protocols, medical experts involved in the initiative said.

Jury Convicts Physician/Director of Pacific Clinic in Long Beach

A federal jury has convicted a Buena Park doctor for participating in a health care fraud scheme involving unnecessary procedures and prescriptions that led to Medicare paying out nearly $3 million on fraudulent claims for durable medical equipment and nutritional supplies.

Following a five-day trial, Dr. Augustus Ohemeng, 62, was found guilty of six counts health care fraud.

While serving as medical director at Pacific Clinic in Long Beach, Ohemeng and others recruited Medicare patients and billed the national healthcare program for office visits that typically included unnecessary tests and procedures. The evidence presented at trial showed that Ohemeng also generated fraudulent prescriptions for medical equipment, power wheel chairs and enteral nutritional supplies, prescriptions that were sold to medical supply companies that used the fraudulent documents to bill Medicare for millions of dollars of unnecessary and undelivered medical supplies. “Nearly all, if not all, of the wheelchair prescriptions Ohemeng and [George Tarryk, another doctor who worked at Pacific Clinic] signed were written for people who could walk,” according to court documents.

Over the course of four years, Ohemeng signed hundreds of these fraudulent prescriptions, many of which were blank so his office manager could fill in the details.

As a result of the fraudulent conduct involving Ohemeng and his co-conspirators, which took place from February 2005 through September 2009, $5.6 million in fraudulent claims were submitted to Medicare, which paid approximately $2.97 million.

As a result of the guilty verdicts, Ohemeng faces a maximum statutory sentence of 60 years in federal prison when he is sentenced on June 17 by United States District Judge Christina A. Snyder.

Ohemeng was among 10 defendants – including two doctors and a nurse – who were charged as a result of an investigation into Pacific Clinic, Ivy Medical Supply in Anaheim and Santos Medical Supply in South Los Angeles. All 10 defendants, including the owner of Ivy Medical Supply, have now been convicted, either as the result of guilty pleas or jury verdicts.

The investigation in this case was conducted by the Federal Bureau of Investigations and the Office of Inspector General for the U.S. Department of Health and Human Services.

San Diego Restaurant Claims Exemption From Workers’ Compensation

A dispute brewing for more than two years between the state and a North County religious organization may have been quietly resolved. According to the article in U T San Diego, the conflict began in June 2010 when inspectors for the state Division of Labor Standards visited the Yellow Deli, a funky sandwich-and-coffee cafe in downtown Vista, and Morning Star Ranch in Valley Center. Both are owned by a group called Twelve Tribes or The Community of Apostolic Order.

State inspectors asked workers at the restaurant and ranch for proof of workers’ compensation insurance and were told that there was no insurance policy because the establishments had no employees, only volunteers. The state issued a $10,000 fine for the Yellow Deli — $1,000 per worker — and a $4,000 fine for the ranch, but the Twelve Tribes appealed the fines, saying that the deli and the ranch were owned by the religious community for the benefit of its members.

James Peterson, a lawyer who represented the group, said Monday that a “confidential settlement” with the state was reached in September. Peterson declined to discuss the terms of the agreement. A spokesman for the state said Tuesday that he did not have information immediately available about any potential agreement. He said the attorney representing the state in the case was unavailable for comment until next week. Terry Francke, the general counsel of the open-government group Californians Aware, said he could think of no reason why the agreement would be confidential.

The Twelve Tribes was recognized as a religious nonprofit 501(d) by the Internal Revenue Service in 1977, according to case documents filed in San Diego Superior Court. Under IRS rules, a religious organization is allowed to operate businesses for the benefit of its members. In a similar case, the state of Vermont determined in 1994 that the Twelve Tribes group was exempt from that state’s workers’ compensation requirements because of its status as a religious nonprofit, according to case documents.

The Twelve Tribes opened the Yellow Deli, a popular restaurant in Vista, in February 2010. The same group runs another Yellow Deli restaurant in Valley Center and the Morning Star Ranch, where members grow the fruits and vegetables used in the food sold at the delis. The produce is also sold to local markets and at farmers’ markets, according to case documents. The businesses generate revenue that is used to pay for the group’s food, utilities and other necessities.

Members of the group work at the businesses but they are not paid money, according to case documents. “Every member working for the Yellow Deli and the Morning Star Ranch live, in their own way, according to the early teachings of the Book of Acts – the way Christ lived in the early days, all in communal fashion,” according to documents. “In exchange, The Community provides for the physical needs of its members, such as food, clothing, shelter, medical expenses, etc.” According to case documents, the state argued that the Yellow Deli and Morning Star Ranch each had business licenses with individual members listed as owners. For example, the Yellow Deli had a license listing Lee Keener and his wife, Anna Keener, as the owners.Since the businesses were owned by individuals, the workers were employees and the businesses were required to have workers’ compensation insurance, according to the state.

The Twelve Tribes originated in the early 1970s in Tennessee, where Gene Spriggs and his wife ran a ministry. Eventually, the group began living communally and opened a deli, the first of several restaurants.The group consists of 2,000 to 3,000 members living in communities throughout the United States, including New York, Vermont, Colorado and California, according to its website. In North County, the group owns properties in Vista and Valley Center, where members live and work.

WCAB Proposes Changes to Rules of Practice and Procedure

The Workers’ Compensation Appeals Board has issued a notice of public hearing regarding proposed amendments to its Rules of Practice and Procedure. The public hearing is scheduled for 10 a.m. Tuesday, April 16 in the Santa Barbara Room, Basement Level, of the Hiram Johnson State Office Building, 455 Golden Gate Ave., San Francisco, CA 94102. Members of the public may also submit written comment on the proposed Rules amendments until 5 p.m. that day.

These changes are largely being proposed in light of Senate Bill 863 (Stats. 2012, ch. 363 [SB 863].)

The WCAB’s notice of the proposed rulemaking, the text of the proposed regulations, and the initial statement of reasons have been posted online.

Public comment will begin promptly at 10:00 a.m. and will conclude when the last speaker has finished his or her presentation. Testimony will be limited to 10 minutes per speaker and should be specific to the proposed regulations. If public comment concludes before the Noon recess, no afternoon session will be held. Although equal weight will be accorded to oral and written comments, the WCAB prefers written comments to oral testimony and prefers written comments submitted by e-mail. If written comments are submitted by the deadline of April 16 no later than 5 p.m., it is not necessary to present oral testimony at the public hearing.

Comments may be submitted by e-mail to WCABRules@dir.ca.gov or they may be mailed to: Workers’ Compensation Appeals Board, Attention: Annette Gabrielli, Regulations Coordinator, P.O. Box 429459, San Francisco CA 94142-9459. Comments also may be submitted by facsimile (Fax) at 1-415-703-4549.

The WCAB will consider all timely public comments and it encourages all interested members of the workers’ compensation community to participate in this important process.

After reviewing the proposed changes there are a few notable comments. “Nothing in the WCAB’s current Rules expressly provides that its provisions are severable and that if any provision (section or subdivision) is declared invalid, then other provisions are not affected. Amending Rule 10300 to add proposed subdivision (b) would expressly declare this intention. Amending Rule 10300 to add proposed subdivision (b) would expressly declare this intention. This is consistent with uncodified provisions of S.B. 863.”

The WCAB says “this is a strictly precautionary provision. Some workers’ compensation commentators have suggested the possibility of constitutional challenges to certain provisions of SB 863. Therefore, in the event an appellate court declares that any WCAB Rule or a statutory provision on which it is based is unconstitutional, this proposed change to Rule 10300 will minimize the impact of any such declaration. It will also minimize the impact of any appellate declaration that a provision of a WCAB Rule is inconsistent with statute or in excess of the WCAB’s authority.”

L.A. City Firefighter Sentenced in Fraud Case

Raphael Davis, 36, a former Los Angeles City firefighter and mixed martial arts fighter known as “The Noodle” was sentenced to probation after he paid $30,000 in restitution and completed 200 hours of community service for filing a false workers’ compensation insurance claim.

Davis pleaded guilty in September to filing the false workers’ comp claim in 2008, during the same time he was participating in mixed martial arts fights as “The Noodle.”

After placing Davis on probation for three years, Superior Court Judge David Horwitz reduced his felony conviction to a misdemeanor despite Deputy District Attorney Angela Brunson’s objection.

WCAB Panel Limits Materials Handed to AME During Deposition

In the case of Martin Trapero v North American Pneumatics: State Compensation Insurance Fund, Trapero, sustained an admitted industrial injury on March 3, 2000. The parties agreed to use multiple AMEs to resolve the case, including an agreement to use Dr. Thompson as their AME in orthopedics. Dr. Thompson examined applicant and issued a report dated June 19,2008. On December 29, 2009, applicant’s attorney noticed Dr. Thompson’s deposition for January 11, 2010. Approximately five to eight minutes before the deposition began, applicant’s attorney handed defense counsel a vocational evaluation report dated January 5, 2010, prepared by Mr. Mark Remas. The report was presented to Dr. Thompson after the deposition began. At page 23 of the deposition, when applicant’s attorney attempted to ask Dr. Thompson to “take a look” at the vocational evaluation report and “perform a cursory review,” defense counsel interjected: “I object to that.”

Based upon applicant’s attorney’s alleged violation of section 4062.3, defendant filed a petition to strike Dr. Thompson’s report and deposition. The matter proceeded to hearing on March 28, 2011. The workers’ compensation judge concluded that there was no violation of Labor Code section 4062.3 when applicant’s attorney handed a recently-procured vocational evaluation report to defense counsel a few minutes before the deposition of the Agreed Medical Evaluator was to begin.

The State Compensation Insurance Fund (SCIF), filed a timely petition for reconsideration. SCIF contended that: (1) applicant’s attorney’s “hand delivery method” of service was not a legally acceptable method of service intended by the Legislature under section 4062.3; (2) the purpose of section 4062.3 is to protect the impartiality of the medical-legal process, and a party who initiates communication with an AME with only a few minutes prior notice to the opposing party may be perceived by the AME as attempting to influence the process; and (3) to interpret the statute in such a way as to permit applicant’s attorney’s “subsequent communication” would be to violate the principles of statutory construction.

The WCAB panel agreed with the SCIF and reversed and returned the matter for further proceedings.

“The vocational report falls within the definition of “information” described in section 4062.3. That is, the vocational report is a “nonmedical record relevant to determination of a medical issue” under section 4062.3(a)(2). Furthermore, subdivision (c) states that if an AME is selected, “as part of their agreement on an evaluator, the parties shall agree on what information is to be provided’ to the AME.”

“Here, in springing the vocational report on defense counsel when the AME was about to be deposed, applicant’s attorney denied defense counsel the opportunity to determine if this new “information” was something that he would agree to provide to the AME. Section 4062.3(c), in stating that the “information” that is to be provided to the AME must be agreed upon by the parties “as part of their agreement on an evaluator,” makes clear that providing “information” to the AME is nothing casual, but goes to the heart of the AME agreement. If the “information” is not agreed to, the AME is not agreed to either. Defense counsel objected to the “information” during the AME’s deposition, so it was not “information” that defense counsel agreed to, and it should not have been provided to the AME at that time.”

“In reaching this conclusion, we are mindful that the impartiality and appearance of impartiality of the medical evaluator, whether an AME or PQME, is paramount. (See Alvarez v. Workers’ Comp Appeals Bd. (2010) 187 Cal.App 4th 575, 589 [75 Cal.Comp.Cases 817, 826].)”

Arizona Seeks To Stop Professional Athlete Claims in California

An Arizona House committee has approved S.B. 1148 already passed by the Arizona Senate that would bar pro athletes in Arizona from filing for workers’ compensation in other states.If passed, Arizona would join a number of states that have passed “reciprocity” statutes that specify Arizona workers who are temporarily working in another state must file the industrial claims in Arizona, provided that the other state has a similar “reciprocity” statute.

California does have a “reciprocity” statute. Labor Code 3600.5 that says in part “Any employee who has been hired outside of this state and his employer shall be exempted from the provisions of this division while such employee is temporarily within this state doing work for his employer if such employer has furnished workmen’s compensation insurance coverage under the workmen’s compensation insurance or similar laws of a state other than California, so as to cover such employee’s employment while in this state; provided, the extraterritorial provisions of this division are recognized in such other state and provided employers and employees who are covered in this state are likewise exempted from the application of the workmen’ s compensation insurance or similar laws of such other state.”

Twenty eight states have “reciprocity statutes that pertain to temporary employees. [Alabama, Arkansas, California, Florida, Georgia (with exceptions), Idaho, Indiana, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, Montana (except in construction industry), Nevada, North Dakota, Ohio (conditional), Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Washington (except construction), West Virginia, and Wyoming.] Theoretically, professional athletes or other temporary employees injured in any of those states would be required to file for workers compensation benefits in their home state. If Arizona concludes the passage of S.B. 1148 they would be the twenty ninth.

Arizona Republican Sen. John McComish who sponsored the bill in the Senate says that professional teams came to him with concerns that professional athletes are filing claims in California because it has more lenient rules for so-called cumulative injuries.

Lawyers for the NFL and Major League Baseball players’ unions told the House commerce committee Wednesday that players rejected both leagues’ efforts to get language in recent collective bargaining agreements banning the practice and they’re now trying to do it legislatively. A pro athlete can sometimes file in another state if they played some games there.

Nona Lee, Senior Vice President, General Counsel, Arizona Diamondbacks and Rob Dalanger from the Arizona Cardinals Football Club testified in favor of S.B. 1148. The bill passed the Arizona Senate on a 6-1 vote. If passed the law would apply to claims made after the date of passage regardless of the date of injury.

A.B. 1301 was introduced a few weeks ago in the California Assembly by Assembly Insurance Committee Chairman Henry Perea (D-Fresno). If passed into law, it would limit the avalanche of workers compensation claims filed by out of state professional athletes in California,

CalChamber Places SB 626 on 2013 “Job Killer” List

Each year the California Chamber of Commerce releases a list of “job killer” bills to identify legislation that will decimate economic and job growth in California. The CalChamber will track the bills throughout the rest of the legislative session and work to educate legislators about the serious consequences these bills will have on the state. Last year, 32 bills identified as “job killers” were introduced in the California Legislature. These “job killers” had something for every business and industry in California to hate – automatic minimum wage increases, increased employer liability, new barriers to economic development, more regulations and higher taxes on business.

In 2012, the California Chamber claims to have stopped 28 of these 32 “job killers.” In 2013 they may have a tougher job, facing now a super majority of democrats in both houses of the state legislature. Many of last years bills were defeated by veto of Governor Brown. This year his veto can be over come by the legislature.

The CalChamber has identified the first “job killer” bill of the year. SB 626 (Beall; D-San Jose) severely undercuts the recent balanced workers’ compensation reform deal (S.B. 863) agreed to by labor unions and employers. The bill proposes dramatic cost increases for California employers and would leave them worse off than before the reforms of last year were enacted. SB 626 eliminates the entire balance of the deal and would erase hundreds of millions of dollars in projected savings. Specifically, SB 626 would roll back reforms dealing with timely, high-quality medical treatment and a more predictable – and less litigious – permanent disability system.

The CalChamber claims that “not only will employers face pre-reform escalating costs if this bill is enacted but they will also be burdened by an additional $1 billion in benefit increases with no expectation that this cost will be offset by system savings.”

If passed into law, “SB 626 is a giant step backwards for California employers during the current fragile economic recovery. Additionally, SB 626 reverses a bipartisan labor-employer compromise. These types of agreements between key stakeholders that enjoy overwhelming bipartisan approval should be encouraged and protected, not attacked and diluted.”

  • It eliminates the cornerstone cost-saving provision contained in SB 863 -independent medical review.  Under SB 626, independent medical review decisions would be fully appealable to the Workers’ Compensation Appeals Board, taking medical necessity decisions away from physicians and putting them back in the hands of judges. It would also result in treatment delays for injured workers. The savings associated with independent medical review are estimated at around $400 million.
  • It repeals a provision in SB 863 that eliminates impairment ratings for psychiatric add-ons in some, but not all, cases.  Numerous data driven analyses demonstrated applicant attorneys had excessively abused this add-on to artificially inflate permanent disability ratings.
  • It repeals a provision in SB 863 that prohibits a chiropractor from being a primary treating physician once the maximum number of chiropractic treatments have been received.
  • It unnecessarily limits utilization review and independent medical review by requiring that the reviewing physician hold the same license as the physician requesting treatment. Current law requires reviewers to be competent to evaluate the specific clinical issues involved in the medical treatment and utilize relevant, evidence-based medical treatment guidelines, which are not state-specific.