Tag: 2013 News

Bryan Knittel injured his knee in 2009 while working as an Alameda County Deputy Sheriff. Knittel was unable to perform his duties after the injury, and the County of Alameda (County) paid disability benefits from the date of his injury.

He was classified as temporarily disabled for over two years. For the first year Knittel was disabled, the County paid him benefits pursuant to Labor Code section 4850. Under that section, public safety officers who are disabled in the course of their duties are entitled to a leave of absence without loss of salary for up to one year. After the first year passed, the County paid Knittel “regular” temporary disability indemnity benefits for another year. The County then ceased to pay temporary disability indemnity, citing the 104-week limit on aggregate disability payments for an injury causing temporary disability. (Labor Code 4656, subd. (c)(2).).

Knittel disputed the County’s interpretation of the law and requested a hearing before the Workers’ Compensation Appeals Board (WCAB). At the hearing, the workers’ compensation judge (WCJ) assigned to the matter agreed with Knittel, concluding section 4850 benefits do not “count toward the two-year limitation under Section 4656.” The County filed a petition for reconsideration. The WCAB denied the petition in an order that merely adopted the reasons stated by the WCJ in his report. The County then filed a petition for review. The Court of Appeal in the published opinion of County of Alameda v WCAB and Bryan Knittel reversed the WCAB and remanded the case for further proceedings.

The Court noted that there have not been any prior decisions have interpreted the statutory language of Labor Code 4656, subd. (c)(2) at issue in this appeal.

There is a special benefit for injured public safety officers. Pursuant to section 4850, eligible public safety officers who become disabled while performing their duties are entitled to a one-year leave of absence without loss of salary “in lieu of temporary disability payments” for up to one year. If the disability continues beyond one year, the officer is entitled to an unpaid leave of absence and whatever other benefits that might be available under the workers’ compensation law.

In 2004, as part of a comprehensive reform of the workers’ compensation law, the Legislature enacted a 104-week limit on disability payments for an injury causing temporary disability. The law currently (and at the time Knittel was injured) provides: “Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.” (§ 4656, subd. (c)(2).). The question here is the meaning of “[a]ggregate disability payments.” The Labor Code does not define the phrase. The County argued that the phrase also encompasses other disability payments for injuries causing temporary disability, including the salary continuation benefit payable to public safety officers pursuant to section 4850.

The Court of Appeal concluded that “The County’s arguments are persuasive. If section 4850 payments are workers’ compensation benefits, then they are part of the “aggregate” of disability payments when they are paid for an injury causing temporary disability. Knittel received an aggregate of two types of workers’ compensation benefits for his temporary disability: section 4850 salary continuation benefits and temporary disability indemnity. Pursuant to section 4656, subdivision (c)(2), Knittel was entitled to a total of 104 weeks of those combined disability benefits, and he received 52 weeks of section 4850 benefits and 52 weeks of temporary disability indemnity.”The reasoning employed by the WCJ to reach the conclusion that section 4850 benefits are not included in aggregate disability payments is unconvincing.”

The current form of the 104-week limit, subdivision (c)(2) of section 4656, was added by the Legislature in 2007. “Ultimately we agree with the County that the Legislature expressed its intent in the plain language of section 4656, subdivision (c)(2). Given the Legislature’s choice of the words “[a]ggregate disability payments,” we think it is clear that section 4850 benefits paid for an injury causing temporary disability must count toward the 104-week limit absent a specific exclusion. Our conclusion is bolstered by the fact that when the Legislature added subdivision (c)(2), the case authority holding section 4850 payments are workers’ compensation benefits was long standing and well established.”

“It appears the Legislature tried to reach a compromise with subdivision (c)(2) of section 4656 – a year of enhanced benefits for public safety officers under section 4850 followed by a year of temporary disability indemnity. To the extent the law is not working or the compromise is unfair, the parties should bring their concerns to the attention of the Legislature.”

Patriot National Insurance Group, a leading provider of workers’ compensation insurance solutions announced the appointment of Michael McFadden as Regional Vice President for California. As RVP, Mr. McFadden will oversee all marketing and underwriting responsibilities for California, and will be based at Patriot’s western regional office in Woodland Hills, CA.

Steven Mariano, Chief Executive Officer and Chairman of Patriot National Insurance Group said, “Mike’s extensive workers’ compensation background and strong leadership make him the natural choice to lead the California region. We are excited to continue our expansion in California operations.”

Mr. McFadden said, “Since joining Patriot in October of 2011 its been a tremendous experience expanding our west coast regional headquarters. The RVP position will allow me to continue to grow the talent within our operation, which now includes local underwriting presence, while also having personal involvement in the production and distribution channels in the region.”

Before joining Patriot National, Mr. McFadden held various leadership positions at Zenith Insurance Company and was most recently Zenith’s Vice President of Claims for the Los Angeles regional office. Mr. McFadden was also the manager of Organizational Development for RJM Adjusters, Inc. He graduated from University of Phoenix with a degree in Business Management.

Patriot National Insurance Group is an insurance holding company focused on workers’ compensation insurance. Patriot National Insurance Group has two operating subsidiaries- Guarantee Insurance Company and Patriot Underwriters, Inc.

A prominent La Jolla oncologist and his corporate medical practice have pleaded guilty in connection with a scheme to import unapproved foreign cancer drugs at a deep discount, dispense them to unwitting patients, bill Medicare as if the drugs were legitimate, and pocket the profits. In a hearing before United States Magistrate Judge Bernard Skomal on January 15, Dr. Joel I Bernstein entered a guilty plea to a single count of introducing an unapproved drug into interstate commerce – in this case, a cancer drug called “Mabthera” intended for market in Turkey – and administering it to patients. The approved United States drug with the same active ingredient is Rituxan, which is used to treat lymphomas and leukemias such as non-Hodgkin lymphoma and chronic lymphocytic leukemia.

Bernstein was released pending sentencing, which is scheduled for April 16 at 1:30 PM before Judge Skomal. In addition, his medical practice, Dr. Joel I Bernstein, MD. Inc ., also pleaded guilty at a hearing today before United States District Judge Cathy Ann Bencivengo to one count of health care fraud.

According to the plea agreement with the corporation, employees of Dr. Joel I Bernstein, MD. Inc. purchased $3.4 million of foreign cancer drugs, knowing they had not been approved by the United States Food and Drug Administration for use in the United States.

From 2007 to 2011, Bernstein’s office purchased these drugs for significantly less than market value in the United States and then submitted claims to Medicare at the full reimbursement price. To conceal the scheme, the office fraudulently used Medicare reimbursement codes for approved cancer drugs, as Medicare does not pay for unapproved drugs. The plea agreement for the corporation also calls for $1.7 million in restitution to Medicare, plus forfeiture of $1.2 million in profits. The corporate medical practice is scheduled to be sentenced on May 17, 2013, before Unites States District Judge Cathy Ann Bencivengo.

In addition, the government has also filed a False Claims Act lawsuit in District Court against Dr. Bernstein and his medical corporation for submitting false claims to the Medicare Program for these unapproved drugs. According to this civil complaint, the Medicare Program was defrauded of over $1.7 million, and under the False Claims Act, the United States can recover triple the amount of damages plus monetary penalties.

The cases involving Dr. Bernstein and his practice are the latest example of an alarming nationwide trend that potentially puts patients at risk by exposing them to foreign drugs – particularly injectable chemotherapy drugs – that are not vetted by the FDA. Agency officials have described the trend as an “epidemic of unapproved and counterfeit drugs.” The FDA’s Office of Criminal Investigations (OCI) currently has over 200 investigations nationwide involving schemes in which medical practices purchase foreign, unapproved drugs and dispense them to unsuspecting patients for personal financial gain. This practice is particularly disturbing because, unlike traditional prescription drugs which are dispensed to the patient by a pharmacy, oncology drugs are typically infused into a patient without the patient ever seeing the box it came in, or any of the related labeling. “This isn’t just about the greed of one doctor but about the welfare of many patients,” said United States Attorney Laura Duffy.

There have been numerous similar cases of illegal importation and distribution of foreign unapproved drugs in San Diego and around the United States in recent years. In cases related to Bernstein, a Florida-based cancer-drug supplier, Martin Paul Bean, III was indicted by a federal grand jury in San Diego in September 2012 for allegedly selling more than $7 million of misbranded and unapproved prescription oncology drugs to United States doctors. Please see 12-cr-03734-WQH USA. The indictment alleged that from 2005 to 2011, Bean, doing business as GlobalRxStore; ordered the misbranded and unapproved drugs from foreign countries, including Turkey, India, and Pakistan; and sold them to the doctors throughout the United States at substantially discounted prices via a wholesale pharmacy in San Diego.

That pharmacy – Oberlin Medical Supply and Service Corp. – was owned and operated by Maher Idriss, who pleaded guilty March 8, 2012, to conspiring with Bean to supply the unapproved drugs. Idriss acknowledged that United States doctors paid him over $7 million for foreign-sourced unapproved oncology drugs from May 2006 to May 2011. Idriss faces up to five years in prison and restitution and has already forfeited approximately $54,000 of profits. He is scheduled for sentencing May 20, 2013.

Elsewhere in the country, doctors, office staff, and drug suppliers in Maryland, Missouri, Tennessee, and California were indicted in similar schemes in 2011 and 2012. They were accused of importing misbranded cancer drugs at significantly cheaper prices, providing them to patients without disclosing the source of the drugs, and then submitting claims for reimbursement from healthcare programs. It was the FDA’s discovery of two counterfeit drugs – Avastin, the approved blockbuster cancer drug for treatment of colorectal, lung, kidney, and brain cancer; and Altuzan, the unapproved Turkish version of Avastin – that brought national media attention to the problem. The Altuzan was found to contain no active ingredient at all and thus would provide no benefit whatsoever to patients.

The California Applicants’ Attorney Winter 2013 Convention is now underway at the San Diego Sheraton and Marina Hotel. The annual meeting will continue until Sunday January 27. The focus on this years convention is “Navigating Your Way Through The Comp System Since SB 863.” Panelists on the first day of the event discussed Medical Control’s and MPNs as well as Discovery and Right to Privacy.

It was not unexpected that panelists anticipate constitutional challenges to the validity of some of the provisions of S.B. 863. The same view was expressed by panelists at the Employers Fraud Task Force presentation earlier this month. It is not clear who or when this challenge will take place, but the consensus is that the theory will involve the constitutional requirement for due process of law. Simply stated, there is a constitutional requirement for a dispute resolution mechanism that provides notice and and opportunity to be heard. The challenge to S.B. 863 will claim that the Independent Bill Review and the Independent Medical Review process does not achieve minimum standards of due process of law. The constitutional argument theorizes that the two administrative procedures do not allow claimants or the employer the ability to argue their case before the decision maker in either of these two administrative processes, and since there is no effective right to appeal before the WCAB on matters of expert opinion, the administrative process falls short of the constitutional requirement.

Panelists also discussed the discovery and privacy rights that changed under the new law. The provisions of LC 4903.6(d) now says that medical information that can not be sent to non-physician lien claimants without written authorization from the WCAB. WCAB Orders must specify what is to be disclosed, and findings that it is relevant. There will be a greater emphasis now on protecting the privacy rights of the injured worker. From the applicants’ standpoint, subpoenas that request “any and all” records would be over broad and subject to petitions to limit that discovery.

LC 5502(b) now includes “whether the injured employee is required to obtain treatment within a medical provider network” as an appropriate issue for an expedited hearing. Presenters claimed that applicant attorneys will now seek expedited hearings on MPN issues since S.B. 868 did away with the rights of the employer to transfer workers back into an MPN, and for that reason if they get out of the MPN, they will remain out indefinitely with “that” treating physician.

The 2013 CAAA Convention continues today and over the weekend. A topic for Friday is “New Ethical Considerations Under SB863” Conflicts of Interest – Dealing with the rules and potential problems – Attorneys, doctors and their staff…… Be aware! – What is an attorney’s legal obligation? On Saturday the topics will include “Utilization Review – UR: What about denied claims or partial denied claims? – Independent Medical Review – Employer to serve applicant attorney with all materials sent to IMR – Time limitations; what happens if review is untimely? – Is there a role for the AME or PQME in treatment disputes?”

As U.S. health care goes high tech, spurred by $20 billion in federal stimulus incentives, the widespread adoption of electronic medical records and related digital technologies is predicted to reduce errors and lower costs — but it is also likely to significantly boost musculoskeletal injuries among doctors and nurses, concludes a Cornell University ergonomics professor in two new papers. According to the report summarized in Science Daily, the repetitive strain injuries will stem from poor office layouts and improper use of computer devices.

“Many hospitals are investing heavily in new technology with almost no consideration for principles of ergonomics design for computer workplaces,” said Alan Hedge, professor of human factors and ergonomics in Cornell’s College of Human Ecology’s Department of Design and Environmental Analysis. “We saw a similar pattern starting in the 1980s when commercial workplaces computerized, and there was an explosion of musculoskeletal injuries for more than a decade afterward.”

For a paper published in the Proceedings of the Human Factors and Ergonomics Society 56th Annual Meeting, held Oct. 22-26 in Boston, Hedge and James asked 179 physicians about the frequency and severity of their musculoskeletal discomfort, computer use in their clinic, knowledge of ergonomics and typing skills. The most commonly reported repetitive strain injuries were neck, shoulder and upper and lower back pain — with a majority of female doctors and more than 40 percent of male doctors reporting such ailments on at least a weekly basis. About 40 percent of women and 30 percent of men reported right wrist injuries at a similar frequency.

“These rates are alarming. When more than 40 percent of employees are complaining about regular problems, that’s a sign something needs to be done to address it,” said Hedge. “In a lot of hospitals and medical offices, workplace safety focuses on preventing slips, trips and falls and on patient handling, but the effects of computer use on the human body are neglected.”

The gender differences, the authors write, appear to be in part because women reported spending about an hour longer on the computer per day than men.

In a second study of 180 physicians and 63 nurse practitioners and physician assistants in the same health system, published in a new volume, “Advances in Human Aspects of Healthcare” (CRC Press), more than 90 percent of respondents reported using a desktop computer at work. On average, they spent more than five hours per day using computers.

Fifty-six percent of doctors and 71 percent of nurse practitioners and physician assistants said their computer use at work had increased in the past year; 22 percent of doctors and 19 percent of nurse practitioners and physician assistants reported less time in face-to-face interactions with patients. Only about 5 percent of participants reported an “expert knowledge” of ergonomics, and more than two-thirds said they had no input in the planning or design of their computer or clinical workstation.

“We can’t assume that just because people are doctors or work in health care that they know about ergonomics,” Hedge said. “With so many potential negative effects for doctors and patients, it is critical that the implementation of new technology is considered from a design and ergonomics perspective.”