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Tag: 2014 News

Details Emerge About Fake Spinal Screws

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Spinal Solutions founder. Roger Williams spent 16 years in the orthopedic sales business with his father before he went out on his own. He started Spinal Solutions in 1999 and launched a firm selling knee and hip implants three years later. From nothing, he built an $18 million-a-year business based in Murrieta, California. Williams and his wife had a BMW, a Mercedes-Benz, a yacht named “Spare Change” and a 6,300-square-foot Murrieta home, according to court records and interviews. He ordered his seven-seat jet painted with stripes of Lakers purple and gold, and he and his wife sat courtside among celebrities at Laker games, according to interviews with former employees.

But Spinal Solutions also racked up big debts with hardware manufacturers and then refused to pay, according to industry executives and lawsuit allegations.The company increasingly relied on Lenders Funding LLC, a firm that fronted cash at an interest rate of 35 percent. By 2013, the company owed the lender about $35,000 per month – solely in interest payments – and imploded in debt.

Spinal Solutions could not have raked in millions or spread its products across the U.S. if not for doctors eager to do business. Roger Williams allegedly lured them with private plane rides, generous consulting contracts and even cash. Williams made it clear the consulting deals and free flights were tools to keep doctors hooked on his products, said Quin Rudin, a businessman who poured money into the company when it hit a cash crunch in 2012. “He said that many times. ‘In order to do business with these guys, I gotta take care of them,’ ” Rudin recalled from behind thick glass in a downtown Oakland jail, where he landed after pleading guilty in an unrelated fraud case.

Although the true extent of the caper remains buried in the necks and backs of people scattered around the U.S., it began to unravel in 2009 when evidence of the scheme landed in the receiving room of Ortho Sol, a surgical supply firm in South Africa. Ortho Sol makes precision screws for the most delicate of construction projects: spinal fusion. The company had repossessed some of its screws after Spinal Solutions LLC stopped paying its bills. Nestled with the returns, the brighter yellow luster of a few screws caught Richard Walker’s eye. Testing confirmed his fears. Some were not made of his firm’s medical-grade titanium. Their uneven threads showed potential for backing out or breaking, he said. He feared the laser-etched markings intended to make them look authentic could be toxic to patients.

More evidence – Derika Moses hefted a case of 2-liter soda bottles while setting up a grocery store display in 2007. Nothing helped. In desperation, Moses opted for spinal fusion surgery.The procedure offered little relief. Five years later, she had most of her spinal hardware removed, convinced that the erector set of metal in her spine was the source of ongoing problems. Attorneys contacted Moses after finding her name among Spinal Solutions’ sales records. CIR showed photos of Moses’ hardware to U and I, the South Korean company whose logo was etched on it. Company engineers noted the finishes and lot numbers on some of Moses’ screws and connectors did not match their product. But the dead giveaway was the logo, they said, which lacks the firm’s signature forward-leaning font. During an interview at the company’s U.S. office in Orange County, California, General Manager Sung Hwang identified three of Moses’ four screws as fakes. “This is obviously not what we did,” Hwang said. “I feel sorry because (patients) got the surgery with improper devices, so they might suffer from it.”

The screws, real or fake, all funneled into what lawsuits claim was a larger scheme to bilk California’s workers’ compensation system. Some hospitals billed insurance carriers as much as $12,500 a screw before a 2012 change in state law shut down the astronomical markups. From that, Spinal Solutions stood to reap several thousand dollars from the sale of a single screw.

The source of the counterfeits, plaintiffs’ attorneys allege, was 85-year-old machinist William Crowder. He owns a small office park machine shop in Southern California’s Inland Empire. He had experience working on parts for boats, planes and, it appears, the human body. In an interview with CIR, Crowder said Spinal Solutions’ operations manager, Jeff Fields, gave him professional-looking medical screws and asked for exact copies. “He might want 50 of this size and 40 of these,” said Crowder, who has been named as a defendant in dozens of lawsuits. Plaintiffs’ attorneys believe that thousands of counterfeit screws went into unsuspecting patients, though Crowder testified in a recent deposition to making “maybe 500.” Crowder also said he didn’t etch anything on the screws he made for Spinal Solutions. Instead, that trail seems to lead to another Spinal Solutions contractor, Ryan Zavilenski. On his YouTube page, Zavilenski boasts of owning a laser engraver. He also posted photos of spinal implants on his photo-sharing website. From behind the screen door of his Santa Rosa, California, apartment, Zavilenski confirmed to CIR that he did laser engraving for Spinal Solutions several years ago. He said he engraved only a few screws, however, which he called prototypes.

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DWC Adjusts Outpatient Hospital and ASC Fee Schedule

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The Division of Workers’ Compensation (DWC) has posted adjustments to the hospital outpatient departments and ambulatory surgical centers section of the official medical fee schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1. The changes take effect December 1, 2014.

L.C. 5307.1(g)(1)(A)(i) provides that the annual inflation adjustment for outpatient hospital facility fees shall be determined solely by the estimated increase in the hospital market basket. Thus, in lieu of using the Medicare 2014 rates to determine the updated OMFS amounts, the estimated increase in the hospital market basket was applied to the 2013 OMFS rate. The 2013 unadjusted conversion factor was $70.761. The estimated increase in the market basket is 2.5%. The revised unadjusted conversion factor under the OMFS is $72.530 ($70.761 x 1.025).

Section 9789.34 Table A sets forth the wage index values and adjusted conversion factors that are applicable to ASCs. These conversion factors would also be applicable to any hospitals that are not in Table B (section 9789.35). Section 9789.35 Table B sets forth hospital-specific wage index values and adjusted conversion factors for services rendered on or after December 1, 2014. Table B reflects the additional 7.1% payment adjustment for services rendered by rural sole community hospitals and EACHs.

More information and the adjustments to the hospital outpatient departments and ambulatory surgical centers section of the OMFS can be found on the DWC OMFS page

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San Gabriel Physician Faces 339 Years for Drug Trafficking

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A San Gabriel Valley doctor has pleaded not guilty to federal drug trafficking charges that allege he illegally distributed drugs that include the powerful and addictive painkiller oxycodone. Dr. Daniel Cham, 47, was arraigned on a 31-count indictment and a trial was scheduled for December 16. Bond was set at $140,000, and Cham was ordered to serve home detention while free on bond and was prohibited from practicing medicine. If convicted of the 31 counts in the indictment, Cham would face a statutory maximum sentence of 339 years in federal prison.

The indictment, which was returned by a federal grand jury on October 7 and unsealed when the defendant was arrested, charges Cham with drug trafficking, money laundering, fraud and making false statements to federal authorities. The indictment focuses on prescriptions Cham wrote at various locations, including his medical offices in La Puente and Artesia. The drugs involved in the allegedly illegal prescriptions include oxycodone (a powerful narcotic painkiller best known under the brand name OxyContin), hydrocodone (a narcotic painkiller often sold under the brand names Vicodin and Norco), alprazolam (commonly known by the brand name Xanax), and carisoprodol (as muscle relaxer best known as Soma).

In May 2014, investigators executed federal search warrants at 13 locations, including Cham’s residence and medical offices. According to the affidavit in support of the search warrants, which was unsealed at Cham’s arraignment, the doctor often saw patients between 8 p.m. and 2 a.m. on Fridays, Saturdays and Sundays, and he post-dated prescriptions to make them appear to have been written on weekdays. In the year that ended in March 2014, Cham issued more than 5,500 prescriptions for controlled substances – primarily for oxycodone, hydrocodone, alprazolam and carisoprodol – and he issued more than 42,000 such prescriptions since July 2010, according to the affidavit.

The affidavit also discussed how an undercover officer made three visits to Cham’s La Puente office earlier this year, and how Cham wrote prescriptions for controlled substances in exchange for $200 or $300 in cash or money orders. As discussed in the affidavit, Cham issued a prescription for oxycodone even though the undercover operative said he “had been high and drunk while receiving controlled substance prescriptions” previously from Cham. On another occasion, Cham prescribed oxycodone even though the undercover law enforcement officer presented, in lieu of photo identification, a written notice that his license had been suspended for driving under the influence.

In addition to counts related to the undercover operation, the indictment charges Cham with fraudulently issuing prescriptions for controlled substances to Tracy Townsend, who used at least five false identities. Townsend, 51, of Studio City, is also charged in the indictment, but his whereabouts are currently unknown.

An investigation by IRS – Criminal Investigation and the Drug Enforcement Administration’s Financial Investigation Group showed that Cham used at least four bank accounts to launder the proceeds of his illegal prescriptions. The indictment charges Cham with concealing proceeds derived from the undercover visits by depositing them into an account held in the name of a separate business.

The investigation into Cham was conducted by the Drug Enforcement Administration, IRS – Criminal Investigation, the Los Angeles County Sheriff’s Department’s Health Authority Law Enforcement Task Force, the Federal Bureau of Investigation, the California Medical Board and the Los Angeles Police Department.

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JPA Association Speakers Discuss Study on Quality Care

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Early, proactive care from high-performing physicians produces superior outcomes at lower costs, according to information presented at the 2014 California Association of Joint Powers Authorities Conference held last month in Lake Tahoe, Calif.

The report in the Claims Journal says that speakers Gregory Moore, M.P.H., president and CEO of Harbor Health Systems, a One Call Care Management company, and Douglas Benner, M.D., chief medical officer of EK Health, presented both data and best practices to the audience of insurance-based risk sharing pool executives.

“The purpose of our study was to determine whether claims outcomes were impacted by delays in care, and whether accelerating care created unintended consequences,” said Moore. “The message here is that claims operations leaders need to look at practices or inefficiencies that are delaying care delivery and consider the financial impact of those delays. We feel strongly this opens further conversation around the evidence that identifying high-performing doctors and letting them practice assertive medicine produces the best outcomes, lowers costs and shortens claims duration.”

The findings demonstrated that the more aggressive approach to care by high-performing physicians had significant reductions in claim duration, indemnity costs and a lower incidence in litigation:

1) Reductions in claim duration from 13 – 20 percent;
2) Reductions in indemnity costs from 19 – 61 percent;
3) Reductions in litigation from 7.2 – 16 percent.

The following best practices should be followed to realize those benefits from proactive, early care:

1) When you can, identify providers that have a trusted track record and treat claims aggressively in order to decrease claim duration and total claim costs. Data shows that the longer the delay in care, the longer the claim duration and cost.
2) Integrate best-in-class physicians with the use of evidence-based guidelines in outcomes-based networks. Remember, guidelines are not absolute barriers on whether to approve care earlier – the key is to understand the patient and not delay care that is already identified as needed.
3) Break down the barriers involved in care coordination for efficiency, better results and faster return-to-work.

The presentation included data from a Harbor Health Systems study on the impact of aggressive care. The study reviewed information for more than 700,000 claims for four procedures: ACL (anterior cruciate ligament) repair, knee menesectomy, shoulder rotator cuff repair, and carpal tunnel injuries.

A free white paper highlighting the impact of aggressive medical care in workers’ compensation is now available.

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WCAB Affirms WCJ Order For Lien Claimant to Appear

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Ana Diaz filed an Application for Adjudication of Claim for injuries allegedly sustained to her right shoulder, right arm, right hand fingers, and lower back. Some of the alleged injuries were accepted by Zenith Insurance Company as industrial, and her claim was resolved by Compromise and Release approved on April 30, 2014.

Several outstanding lien claims remained unresolved, and the matter was set for lien conference on August 6, 2014. Hearing representative Javier Jimenez appeared at the lien conference on behalf of lien claimant California Imaging, who filed a lien for photocopying services. Zenith contended that California Imaging was not a properly licensed professional photocopier as required by the Business and Professions Code.

Hearing representative Javier Jimenez was unable to respond to defendant’s contention and unaware of lien claimant’s licensing status; was unable to explain billing characterized by the WCJ as “less than clear”; and was generally unable to respond to inquiries regarding the issues in dispute and appeared unfamiliar with the file. Mr. Jimenez advised the WCJ that his only authority .was to set the matter for lien trial. When asked by the WCJ to identify the person most knowledgeable at California Imaging regarding. ‘the licensing and billing issues, Mr. Jimenez named Maria Rubio Trujillo, and further stated that Trujillo advised him that the “proper” name of lien claimant California Imaging is actually San Diego Imaging.

The WCJ then continued the lien conference to August 22, 2014, and ordered Trujillo to personally appear “in order to explain lien claimant’s billing, address the licensing issue, and explain the relationship between California Imaging and San Diego Imaging to determine the true identity of the lien claimant.” Trujillo’s petition for reconsideration and for removal followed.

Trujillo contends in her petition that she has unspecified personal and family responsibilities as well as work duties that would be “severely and unreasonably impacted” in unspecified ways by her personal appearance in Oxnard, and contends in essence that the Order was an abuse of discretion and a product of bias against her and/or lien claimant California Imaging by the WCI.

The WCAB dismissed the petition for reconsideration as there was no final order subject to reconsideration, and denied removal in the case of Diaz v Sambrailio.

The Workers’ Compensation Appeals Board and individual WCJs have broad power to do all things necessary or convenient to fully adjudicate the disputed issues and to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of the Labor Code. This includes the inherent power to control the WCAB’s practice and procedure to prevent frustration, abuse, or disregard of its processes which in tum includes the power to order the personal appearance of parties at hearings (Rule 10240( d); Henkel v. State Comp. Ins.Fund (2010) 38 Cal. Workers’ Comp. Rptr. 218 (ADJ4197101, Appeals Board Panel Opinion)).

Rule l 0770.1 subdivision (e), provides in relevant part. that every party or representative appearing at a lien conference or lien trial “shall have sufficient knowledge of the lien dispute(s) to inform the Workers’. Compensation Appeals Board as to all relevant factual and/or legal issues in dispute.” As explained by the WCJ in his Report, the representative for lien claimant California Imaging was unable to respond to reasonable inquiries regarding the licensing issue, nor was he able to provide more basic information such as an explanation or clarification of the disputed billing. Because the representative was unable to comply with Rule 10770.1 (e), the WCJ was unable to meaningfully discuss the issues with the parties or determine whether there were disputes that required a lien trial. It was within the WCJ’s discretion to continue the matter to another date and to require lien claimant’s person most knowledgeable to appear, so that a meaningful conference could be held. The Order for Trujillo to personally appear was not arbitrary, capricious, unreasonable, or improperly motivated.

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Healthcare Risk Managers Discuss Administration of Comp Medical Benefits

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A panel discussion at the American Society for Healthcare Risk Management’s annual conference in Anaheim this month covered the advantages and disadvantages of self administration of health care benefits for injured workers in the health care industry. According to the report in Business Insurance, self-administration of workers compensation claims can be a favorable option for health care organizations to track how their workers are being treated. At the same time, workers comp claims managers said third-party administrators can aid health systems that manage comp claims in multiple states.

Patrick Venditti, executive director of BJC Corporate Health Services in St. Louis, the risk management division of St. Louis-based BJC HealthCare, said the nonprofit health care provider used a TPA to manage workers comp claims before 2005. But it moved to administering its own workers comp claims because it allowed the parent of 12 hospitals and other medical facilities to effectively treat injured workers and reduce its costs, while the TPA previously focused primarily on costs, he said. “Being in a health care setting,” Mr. Venditti said, “we are aligned with our physicians, we get to know a lot of physicians within the system.” The health care provider is self-insured, and has 28,000 employees and about 5,000 volunteers eligible for workers comp, he said. “So we partnered with them and the goals that we have are aligned to get the best care we can for those patients.”

Dan Nicholson, director of integrated disability management at Sutter Health in Sacramento, California, agreed that self-administration has been favorable for his company, which is self-insured and has about 50,000 employees. “When you’re self administered in a health care setting, your goal is patient care,” Mr. Nicholson said. “That’s….. drilled down to the people in our claims staff because we’re all there to facilitate care at the bedside. And to do that effectively, we need to make sure our injured clinicians get good, effective medical treatment and they get back to work as soon as practical.”

Suzann M. Bylund, senior director of associate risk management programs at Ascension Risk Services in St. Louis, the risk management division of Ascension Health, said the health care provider’s workers comp claims are administered by Sedgwick Claims Management Services Inc. Sedgwick has adjusters who work exclusively on Ascension claims at the health system’s offices, and Ms. Bylund said they are treated as part of the Ascension staff. Working with a large TPA has helped Ascension manage the nuances and legal changes in workers comp systems across the country, Ms. Bylund said. The health system, which is self insured, has 155,000 employees in 23 states and Washington. “We’ve found it to work very well just because of the sheer size of the program,” she said.

Mr. Nicholson said organizations that use TPAs to manage workers comp claims should follow Ascension’s example by integrating TPA claims handlers with internal staff. “Make sure that you treat your claims staff like they were one of your own employees,” he said. “Treat them well, recognize them when they do good work… and don’t manage them with a hammer because it doesn’t work.”

Mark Walls, vice president of communications and strategic analysis for St. Louis-based workers comp insurer Safety National Casualty Corp., moderated the panel

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Researchers Find Genetic Role and Treatment for Post-Traumatic Arthritis

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Researchers at Western University have identified a specific gene that plays a key role in the degradation of cartilage in osteoarthritis (OA). The study, published online in the journal Arthritis and Rheumatology showed that when the gene, PPARdelta, was removed from cartilage the progression of post-traumatic osteoarthritis was considerably slowed. Study co-author Frank Beier, PhD, a professor in the Department of Physiology and Pharmacology at Western’s Schulich School of Medicine and Dentistry, says this promising new research may be the first step to identifying new treatments. “What this tells us is that this gene is an important player in the pathogenesis of the disease and therefore might be a potential therapeutic target,” Beier said.

According to a report by the Arthritis Alliance of Canada, more than 4.5 million adult Canadians currently live with OA, and it is estimated that it drives $10 billion in direct health care costs. Post-traumatic osteoarthritis, which is triggered by a specific injury, makes up 10 to 15 per cent of all cases of the disease and affects a younger, more active portion of the population.

“The current thinking is that what happens in those first hours after injury can have long-term impact,” Beier said. “This research shows that we might have a window that we could give these drugs right after the injury happens and maybe slow the onset of the cartilage degradation associated with osteoarthritis.”

These research findings may also help to explain the link between obesity and OA. It has long been known that obesity is one of the major risk factors for OA, and the conventional thinking was that the link was associated with the increased load on the joints. However, recent evidence suggests that chemical signals circulating in the body contribute to osteoarthritis risk in obese patients. Beier says that because PPARdelta is activated by fatty molecules, lipids from a high-fat diet could directly activate the pathway that allows PPARdelta to break down cartilage in the animal model.

“This also suggests that in the future, modulation of PPARdelta through diet changes, as opposed to drugs, could also be a strategy to prevent Osteoarthritis,” Beier said.

Apportionment of permanent impairment in California Workers Compensation is based upon causation. Genetic research seems to be creating more and more opportunities to develop theories upon which apportionment can be based.

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Berkeley City Council Studies Comp Costs

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The Berkeley city auditor presented a report to Berkeley City Council intended to help the Berkeley Police Department reduce its injuries and workers’ compensation claims, which cost BPD $2.4 million in fiscal year 2013. The Daily Californian reports that this study – initiated by the city auditor’s office as part of an annual risk assessment plan – recommended several ways that BPD could more efficiently document injuries, including sharing information with the human resources department and redefining how injuries are classified in reports. The new practices would help city management and BPD identify trends and develop measures to prevent future injuries, according to the report.

“Lowering the cost of claims will involve leadership, resources and better data,” said City Auditor Ann-Marie Hogan, who commissioned the report. “Our audit clearly demonstrates the ways in which data collection and use of that data can be improved, and city management is committed to making those changes.”

A contractor recently hired by the city found that BPD is among police departments with the lowest number of both dollar losses and claims when compared with five other police departments with similar characteristics and operations.

The audit is part of an effort to reduce workers’ compensation costs throughout the city. According to a Sept. 30 report by the city manager, in fiscal year 2013, the city spent more than $6 million on workers’ compensation and filed 200 new claims. Berkeley reduced its costs by 18 percent for fiscal year 2014, saving $1.1 million and filing 23 fewer claims. The report attributes the difference to several factors, including “aggressive and sustained emphasis” on employee safety training. “Resources will be needed to do the extra work required to improve systems and outreach to employees,” Hogan said in an email. “With steadily shrinking available resources for the police department and all city departments, it will be a challenge to make the time available to complete the work.”

Of the $2.4 million in BPD’s costs, approximately $1.9 million was paid to the city’s workers’ compensation fund, which acts as a type of insurance fund for current and past claims. The remaining $500,000 was spent on payroll costs for BPD employees on leave for injury.

While the audit was not aimed at reducing workers’ compensation fraud, Hogan said data gathered with the improved methods can help identify trends that could indicate fraudulent claims.

BPD currently classifies injuries in 14 different causal categories, including lack of skill or stress. Last year, the most frequent injuries sustained were during detention, arresting and booking procedures and from exposure to illness.

Some of the report’s recommendations, such as a citywide written guidance for reporting injuries, have been partially implemented, while all are expected by 2015.

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Castro Valley Orthopedist Arrested on 31 Fraud Related Felonies

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Castro Valley orthopedic surgeon, Douglas J. Abeles, M.D., surrendered on an arrest warrant obtained by the Alameda County District Attorney’s Office for his role in an insurance fraud scheme occurring out of his East Bay business office. He has been charged with 31 felony offenses following an investigation that was conducted jointly by the Alameda County District Attorney’s Office and the California Department of Insurance.

Medical Board records do not show any disciplinary actions against him and also do not reflect that he is board certified in any specialty. He currently has unfettered rights to practice medicine. According to his website drabeles.com, “Abeles specializes in Sports Medicine, Spine Surgery, and General Orthopaedics. He completed fellowships at Georgetown University-Virginia Sports Medicine Institute and also USC-Rancho Los Amigos Spine Surgery in 1995. His residency was completed in 1993 at the prestigious New York Medical College-Brooklyn-Queens (previously known as Catholic Medical Center). He also rotated on the spine and pediatric services at the Hospital for Joint Disease in 1992”.

The Criminal Complaint filed by authorities against Abeles and his office manager, Gabriela Cuevas, alleges that for several years he falsely and fraudulently billed insurance companies for medical services that were not provided. While Abeles, had an orthopedic medical practice in Castro Valley, he also owned and operated at least four medically-related businesses from an office located at the Castro Valley-Hayward border. These businesses included drug testing urine analysis for medical offices that contracted with him. It was through this business that he allegedly fraudulently billed insurance companies for lab reports.

Abeles allegedly formed Physicians RX Network, Inc. (“PRXN”) in 2005 in a location other than his medical office. PRXN contracted with physicians in regards to the dispensing of prescribed drugs, including prescription compound creams, billing the insurance companies on behalf of the physicians for these drugs. In late 2010, Abeles went into the Urine Analysis (“UA”) business, forming Redwood Laboratory Management, LP and Redwood Laboratory Associates, LLC (“RLM”). RLM contracted with physicians in regards to urine drug testing of patients and billing insurance companies on behalf of the physicians for this drug testing.PRXN and RLM operated in the same office and the two businesses overlapped and shared. In May of 2011, Abeles formed another business, PRXN Toxicology, LLC.

Abeles hired Gregg Gorski to be a sales representative, Roxanne Cecot to be the billing supervisor and Larry Davis to be the Chief Operating Officer of PRXN. All three had complained about improprieties in PRXN billings, particularly about over-billing insurance companies for prescription drug compounds. Roxanne Cecot learned that Douglas Abeles told the receptionist at PRXN and another PRXN employee to over-ride the billing software at PRXN and manually increase the prices When Roxanne Cecot complained to Abe!es about the billing improprieties Abeles allegedly replied “Screw them until they catch on.” Abeles allegedly sent an email that said “if any employee further implies any wrong doing to anyone they are to be let go immediately on grounds of insubordination and liable. We cannot operate a successful company with this kind of mutiny …. “‘

One document allegedly sent to insurance companies was was called a “Urine Toxicology Review” report and it purported that the physician that ordered the urine test spent forty-five minutes reviewing medical records that had been submitted for the physician’s review by PRXN. This activity allegedly did not take place and the billing was fraudulent  In March of 2013, Gabrieia Cuevas’ work computer was seized pursuant to a court ordered search. There were over 10,200 of these UTR’s stored in her computer.

Abeles posted $355,000 bail and Gabriela Cuevas was released on her own recognizance. Arraignment is scheduled for Monday, November 3, 2014.

.Any medical professional or insurance company that believes it may have been a victim to this fraud is asked to contact the Alameda County District Attorney’s Office, Alameda ADA Teresa Drenick: Teresa.drenick@acgov.org Facebook Twitter @AlamedaCountyDA. Phone: 510-272-6280.

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WCAB Rules Sub-Rosa Film Admissible Despite “No Trespassing” Signs.

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Jonathan Duong sustained an industrial injury to his spine while employed by the Automobile Club of Southern California. The sole issue framed for trial on a discovery dispute was defendant’s request for an order permitting it to provide surveillance videos to medical-legal evaluators, pursuant to Qualified Medical Evaluator Regulation 35(d). Applicant asserted that the films violate his right to privacy and, therefore, are not admissible and should not be provided to the doctors.

An investigator testified that he conducted surveillance of the applicant by following him first along the street and later by entering the driveway to a Mobile Home Park; that he entered and parked in the visitor parking space; that he entered onto the property three times and each time parked in the same location; that he filmed applicant entirely from the car; that there were no signs regarding private property or trespassing that he observed from the street when he entered the driveway; and that he understood that the Mobile Home Park was not applicant’s place of residence. He also filmed him inside an Albertson’s grocery store.The only evidence admitted at trial was a photograph containing an Albertson’s logo and the words, “NO Videotaping, Photography, Audio Taping, anywhere on store premises without prior consent.”

The owner of the Mobile Home Park; testified that that there are two signs at each entrance that read “Invitees and Guests Only. No Trespassing. Violators will be Prosecuted;” that there are also signs that say “Private Property;” that he did not invite the investigator onto the property; that he does not know if anyone else invited the investigator; that he did not give permission to the investigator to film on the property; that he did invite applicant to visit his property; that he is applicant’s adoptive father; that his unit is the fifth mobile home from the street; and that there is guest parking as you enter into the park from the street.

The WCJ excluded the sub-rosa video evidence finding that “the filming was accomplished in a manner that violated the rules of both properties and the surveillance company itself.” In her Report, the WCJ added that ”there is an important policy consideration to be factored in where the evidence is obtained in a manner which violates posted rules and company policies.” The WCAB granted reconsideration and removal and reversed the ruling in the panel decision of Duong v. Automobile Club of Southern California. It issued a new Findings and Order ruling that that the sub-rosa video is admissible and ordering that it may be provided to any medical-legal evaluator or treating physician.

The panel reasoned that applicant did not establish any statutory restriction that prevents defendant’s private investigators from obtaining sub-rosa video in apparent violation of rules posted by private property owners. (Cf. Lab. Code, § 435 (prohibiting employers from making video recordings of employees in limited circumstances); Pen. Code, § 6470) (prohibiting secret videotaping of persons in various stages of undress).)

The WCAB went on to state that “We are not persuaded by the argument that defendant violated Civil Code section 1708.84 (the so-called “anti-paparazzi” statute), where subsection (g) creates an exception for private investigators attempting to capture surveillance video of suspected fraudulent conduct. More importantly, Civil Code section 1708.8 addresses civil tort liability for the invasion of privacy. The proceedings before us do not pertain to civil tort liability but rather the admissibility of evidence before the Appeals Board. Therefore, Civil Code section 1708.8 appears to be inapplicable.” It went on to state that “we do not agree that applicant had a reasonable expectation of privacy” in either the parking lot of the Mobile Home Park or inside of Albertson’s. Generally, there is no reasonable expectation of privacy in settings where activities are conducted in an open and accessible space, within the sight and hearing of the general public or of customers or visitors to that open and accessible space, or in areas of commercial premises that are open to the public.

In this case, the private investigator filmed applicant in the parking area of a Mobile Home Park and inside an Albertson’s grocery store. Applicant did not reside at the Mobile Home Park but was there visiting his adoptive father. There is no evidence that the Mobile Home Park is a gated community, that the general public is excluded by the use of a gate or security, or that the parking area is somehow shielded from view of the street. This is especially true where members of the public can freely drive into the common parking area and where the parking area of the home he was visiting was only five (5) houses from the street. “We find even Jess expectation of privacy at Albertson’s where applicant was filmed in a commercial area open to the public.”

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