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Tag: 2015 News

FEHA Does Not Mandate Shift of Duties to Other Employees

Virglio Duarte worked for The Vons Companies, Inc. as a baker since 1990. He suffered a work-related injury in 2009 that restricted his ability to use his left arm. Vons rescheduled Duarte for 12 weeks to a shift at which he had access to a “baker’s helper,” who did the lifting, pushing and pulling that the baker usually does.

Vons generally offers up to 12 weeks of what it calls modified duty to employees who have a workers’ compensation injury. If the employee continues to have work restrictions after 12 weeks, he or she is taken off this modified duty and put on temporary disability – in this case involuntarily. Vons investigated another position for Duarte that turned out to be unavailable. After a lengthy leave of absence, Vons terminated Duarte.

Duarte contends in his civil suit against Vons that he was not accommodated properly, Vons failed to engage in a good faith interactive process, and he was harassed because of his disability. Duarte brought claims under FEHA, as well as other causes of action. Vons moved for summary judgment arguing there was no triable issue of fact. The trial court granted a summary judgment in favor of Vons, and the Court of Appeal affirmed in the unpublished case of Duarte v. The Vons Companies, Inc.

For a plaintiff to prevail on claims for disability discrimination and failure to provide a reasonable accommodation, he or she must show that he or she was able to perform the essential functions of the position from which he or she was terminated with or without a reasonable accommodation. The FEHA does not require an employer to shift a disabled employee’s essential duty to other employees. The statute does not require other employees to work harder or longer. Slowing production or assigning an injured worker lighter loads is not required by law.  Also, that another employee is required to do an employee’s duties suggests that the duties are essential.

Although an employee cannot be expected to identify and request all possible accommodations during the interactive process, “the employee should be able to identify specific, available reasonable accommodations through the litigation process, and particularly by the time the parties have conducted discovery and reached the summary stage.” .) If the employee cannot identify such a reasonable accommodation after discovery in litigation, he or she has suffered no remediable injury from any violation.

The only accommodations Duarte proposed was to have a helper do all the lifting, pulling, pushing, and reaching and pouring of heavy material and allowing Duarte to use a scooper instead of pouring. The proposed accommodation was not reasonable as a matter of law. With regard to Duarte’s claims that Vons did not fulfill its duty to engage in the interactive process, Duarte’s failure to identify a reasonable accommodation that was available at the time the interactive process should have occurred, dooms his claim.

FedEx Resolves Classification Class Action for $228 Million

The judge overseeing a class action lawsuit against FedEx Ground over its classification of certain drivers as independent contractors instead of employees has approved the company’s June-announced $228 million settlement with 2,300 California-based FedEx drivers.

The settlement will resolve the legal battle that’s now stretched a decade, as the original complaint in the case was brought against the LTL giant in 2005. Truck operators for the company claimed their designation as contractors, and not company employees, kept them from being eligible for certain state-required employee benefits like overtime pay and rest breaks.

The settlement covers just the 2,300 drivers that worked at the company in California between 2000 and 2007. Other similar cases in other states will proceed separately, said company spokesperson Perry Colosimo.

The settlement came following an August 2014 ruling against FedEx in the case. The federal 9th Circuit Court of Appeals’ Aug. 27, 2014-issued ruling said the drivers bringing the suit should have been classified as employees.

This July, the U.S. 7th Circuit Court of Appeals made a similar in ruling against FedEx involving drivers in Kansas. The federal appeals upheld the Kansas Supreme Court’s 2014 ruling that said 500 drivers based in the Sunflower State were improperly classified as contractors instead of employees. Both the 7th Circuit and 9th Circuit appellate courts would be the last stops before the Supreme Court.

Jury Convicts DME Owner and Operator

A federal jury in Los Angeles convicted the former owner and the former operator of a durable medical equipment supply company of health care fraud charges in connection with a $1.5 million Medicare fraud scheme.

Amalya Cherniavsky, 41, and her husband, Vladislav Tcherniavsky, 46, of Long Beach, California, were both convicted of one count of conspiracy to commit health care fraud and five counts of health care fraud. Sentencing is scheduled for Dec. 14, 2015, before U.S. District Judge Terry J. Hatter Jr. of the Central District of California, who presided over the trial.

The evidence at trial demonstrated that Cherniavsky owned JC Medical Supply (JC Medical), a purported durable medical equipment (DME) supply company, and that she co-operated the company with her husband, Tcherniavsky. According to the trial evidence, the defendants paid illegal kickbacks to patient recruiters in exchange for patient referrals. The evidence further showed that the defendants paid kickbacks to physicians for fraudulent prescriptions – primarily for expensive, medically unnecessary power wheelchairs – which the defendants then used to support fraudulent bills to Medicare.

According to the evidence presented at trial, between 2006 and 2013, the defendants submitted $1,520,727 in fraudulent claims to Medicare and received $783,756 in reimbursement for those claims.

The case was brought as part of the Medicare Fraud Strike Force, supervised by the Criminal Division’s Fraud Section and the U.S. Attorney’s Office of the Central District of California.  The case was investigated by the FBI, HHS-OIG’s Los Angeles Regional Office and the California Department of Justice.  The case is being prosecuted by Trial Attorneys Blanca Quintero and Kevin R. Gingras of the Criminal Division’s Fraud Section.

Since its inception in March 2007, the Medicare Fraud Strike Force, now operating in nine cities across the country, has charged more than 2,300 defendants who have collectively billed the Medicare program for more than $7 billion. In addition, HHS’s Centers for Medicare and Medicaid Services, working in conjunction with HHS-OIG, is taking steps to increase accountability and decrease the presence of fraudulent providers.

Assistant Attorney General Leslie R. Caldwell of the Justice Department’s Criminal Division, U.S. Attorney Eileen M. Decker of the Central District of California, Special Agent in Charge Chris Schrank of the U.S. Department of Health and Human Services-Office of the Inspector General’s (HHS-OIG) Los Angeles Region, Assistant Director in Charge David Bowdich of the FBI’s Los Angeles Division and Special Agent in Charge David Jett of the California Department of Justice’s Bureau of Medi-Cal Fraud and Elder Abuse made the announcement.

DWC Adds Two New Evidence Based Guidelines to MTUS

The Division of Workers’ Compensation (DWC) will be updating the clinical topic medical treatment guidelines of the Medical Treatment Utilization Schedule (MTUS) set forth in section 9792.23 et seq. The DWC begins this process by posting two new additional guidelines, the proposed Occupational Interstitial Lung Disease Guideline and Occupational/Work Related Asthma Guideline, to its online forum. Members of the public may review and comment on the proposals until October 26, 2015.

“The MTUS updates help to ensure that medical treatment in the California workers’ compensation system is based on the newest and best evidence,” said DIR Director Christine Baker. DWC is a division of DIR.

Once the online forums have been completed for each specific clinical topic, the DWC will combine all of the proposed regulatory updates and additions to section 9792.23 et seq. into one rulemaking package.

“The MTUS chapters on Occupational Interstitial Lung Disease and Occupational Asthma provide an important framework for evidence-based treatment of workers with potentially debilitating diseases,” added DWC Executive Medical Director Dr. Rupali Das. “We are actively updating all our medical treatment guidelines to incorporate the current scientific and medical knowledge for many other work-related conditions.”

The proposed guidelines incorporate by reference the June 6, 2015 version of the American College of Occupational and Environmental Medicine’s “Occupational Interstitial Lung Disease Guideline” and “Occupational/Work Related Asthma Guideline” which the DWC has adopted with permission from the publisher.

The MTUS Occupational/Work Related Asthma Guideline and the MTUS Occupational Interstitial Lung Disease Guideline are set forth in proposed new regulatory sections 9792.23.10 and 9792.23.11 respectively of Title 8 of the California Code of Regulations and can be found in DWC’s website.

Former Cochlear Scientist Develops Enhanced Spine Implant

Doctors in Australia have carried out a pioneering procedure to treat chronic pain, fitting a permanent spinal cord implant which can record signals from the nervous system and adjust the strength of impulses sent to affected areas.The procedure is claimed to be a breakthrough for treatment of chronic pain and could help patients to avoid pain-killers.

Joe Grewal, the first human to be fitted with a permanent implant, said he has suffered chronic back pain for more than 30 years and now “feels amazing”. The 60-year-old said his pain level had dropped from eight of ten before the treatment to “two or three” immediately afterwards. The device, developed by Saluda Medical, was fitted at the Royal North Shore Hospital in Sydney on Tuesday.The implant was inserted within the spinal canal, about five millimetres from the spinal cord. From there, the implant sends an electrical current through the nerves to provide relief in the area of the body that is experiencing pain.

Dr Charles Brooker, the specialist who fitted the implant, said it was a “big advance” because the device could record signals emerging from the nervous system. “Spinal cord stimulators [send] signals into the spinal cord and so the person with pain feels tingling in the pain area and that confuses the brain and they don’t feel the pain, they just feel a pleasant tingling sensation,” Dr Brooker told ABC News.

The Evoke closed loop neuromodulation control system is designed to automatically adjust stimulation levels for maximum symptom relief irrespective of patient movement. A major drawback of conventional spinal cord stimulation products is that the electrodes placed along the spine move relative to the location of the nerves of the spinal cord. As they move, the level of stimulation of the nerves changes. Simple activities like coughing, sitting down or moving the head can cause changes in the nerve signals of up to 10 times, often causing unpleasant sensations, ranging from uncomfortable tingling to severe shocks. The new machine can adjust itself to produce whatever set level the patient wants, and that’s a big advance because previously, whenever people moved or their heart was pulsating, various things would make the electrical signal waver up and down quite significantly.

Saluda chief executive John Parker said his implant, which will initially cost about $30,000, had the capacity to reach a market 10 times the size of the current one and had the potential to help patients with other nerve conditions, including Parkinson’s disease and overactive bladder syndrome. Parker was formerly an executive director at Cochlear, a global biotechnology company based in Australia that designs, manufactures and supplies the Nucleus cochlear implant, the Hybrid electro-acoustic implant and the Baha bone conduction implant that has restored the sense of hearing. Cochlear was named Australia’s most innovative company in 2002 and 2003, and one of the world’s most innovative companies by Forbes in 2011.

$300K Fine for Ignoring Cal/OSHA Stop Order

Cal/OSHA cited two Northern California construction businesses more than $300,000 for exposing workers to cave-in hazards at a residential construction site in Piedmont. The companies violated Cal/OSHA’s order to stop work until the imminent hazard was abated.

Cal/OSHA cited San Mateo-based general contractor EMI Design and Construction Inc. for 10 workplace safety violations, including two willful and three serious in nature with total proposed penalties of $164,465. Salt Light Investments Inc., a construction project management company in Berkeley, was cited for three workplace safety violations including two willful in nature, with proposed penalties of $140,375.

The violations were discovered during an April 20 investigation at the residential construction site. Cal/OSHA investigators found 11-foot unshored walls and issued a stop-work order that same day to address the unsafe excavation. Three weeks later, Cal/OSHA learned that the employers ordered workers back to the site, despite failing to correct the imminent hazards.

Both EMI Design and Construction Inc. and Salt Light Investments Inc. were issued willful violations for failing to shore up an excavation up to 11 feet and for a lack of a design for proper shoring as required. EMI was also cited three serious violations for an unguarded floor opening, an unguarded wall opening and unguarded exposed rebar ends.

A similar hazard caused a fatal accident at a Milpitas construction site in January 2012. In that case, a construction employer ordered a worker back to an excavation site with unshored 12-foot walls three days after a stop-work order had been issued because of the hazard. The walls caved in, killing the worker. Cal/OSHA launched a criminal investigation, leading to two years’ jail time for both the construction company owner and the project manager.

A serious violation is cited when there is a realistic possibility that death or serious harm could result from the actual hazardous condition. A willful violation is cited when the employer is aware of the law and violates it, or when the employer is aware of the hazardous condition and does not take reasonable steps to address it.

Stanford Professor Leads Protesters at Salinas WCAB Office

The Monterey Herald reports that about 30 people who say workers’ compensation law SB 863 has created a complicated and convoluted system expressed their frustrations in a protest outside the Workers’ Compensation offices in Salinas on Wednesday. “It is driving them down,” said Dr. David Torrez, spokesman for the protesters. “There are increases in depression, anxiety, suicide, divorce and fractured families.”

SB 863 is considered one of Gov. Jerry Brown’s landmark reforms. The bill took effect in 2013 and made wide-ranging changes to the state’s workers’ compensation system, including increased benefits to injured workers and cost-saving efficiencies, says a report by the Department of Industrial Relations and its Division of Workers’ Compensation.

Torrez said workers he sees are dissatisfied with the effects of SB 863 and “the draconian methods that various workers’ compensation insurance carriers are using to deny them some very basic medical rights and benefits.”

Gilbert Stein, a lawyer who specializes in workers’ compensation, told the crowd they were protesting in the wrong place. He said they should be protesting the law with their legislators.

Torrez is a chronic-pain specialist and marched with the other protesters. He said he was speaking for and showing his support of injured farmworkers from the Monterey, Santa Cruz and San Benito county areas. Torrez, who is an assistant professor at Stanford School of Medicine, says there have been complaints of major delays in the access, treatment, medication and follow-up of patients. Torrez said the processes keep the patient from getting needed treatment, therapy or medicines.

And it is getting more difficult to find doctors who accept workers’ compensation patients because, he said, of the amount of paperwork involved. “It has become punitive,” said Torrez. “The very people these laws were enacted to benefit and protect” are being hurt by them.

Medical Fraud, Waste and Abuse Costs $28.5 Million Per Hour

During a recent webinar – Recognizing and Combatting Medical Fraud, Waste and Abuse in Property and Casualty – Verisk Analytics outlined the ways medical fraud is perpetrated and ways it can be identified and controlled. According to the company, it is estimated that $234 billion goes to medical fraud, waste and abuse in the healthcare system annually – that’s $28.5 million an hour.

And the problem is growing rapidly. In 2000, fraud accounted for 10 percent of Property and Casualty spend. In 2015, fraud accounts for 30 percent. Medical fraud costs an estimated $30 to $50 billion annually. In worker’s compensation, $5 billion annually is attributed to fraud with 30 percent of that attributed to prescription fraud and abuse.

Not surprising, personal injury protection (PIP) fraud totals $6.8 billion annually. One in four PIP claims in New York have a fraud component, while one in three in Florida do. The Florida Office of Insurance Regulation reported no-fault fraud and abuse cost the state’s consumers and insurers about $658 million in 2011.

The Verisk solutions manager outlined the following examples of fraud, waste and abuse: Misidentified procedures; Cost shifting; Drug seeking; Identity theft – patient or provider; High times – when a provider bills for more hours than are in a day; Template billing – everyone seen is billed for the same procedures and diagnoses; Specialty procedure and diagnoses codes mismatch; Upcoding; Evaluation and maintenance codes by PTs and MTs; Boiler plate billing; Accelerated treatment path – Evaluation and maintenance, MRI then surgery; Modifier abuse – code 59 is commonly used indicating more work so extra charges.

Insurance Research Council data released earlier this year found that claims with possible fraud and/or buildup were more likely to include chiropractic treatment, physical therapy, alternative medicine and pain clinics.

With the changes to the U.S. healthcare system over the past few years, there is evidence of a trend towards cost shifting from group healthcare to the Property and Casualty industry. Doctors are trying to make up for lost revenue by charging more in workers’ compensation and auto cases.

CWCI Says Drug Testing “Emerging Cost Driver”

High rates of inappropriate opioid use, physician drug dispensing and the increased utilization and cost of pharmaceuticals in the California workers’ compensation system have been well documented by public policy research. These issues are now associated with another emerging cost driver — drug testing.

Prior CWCI research on the topic, published in May 2012, documented the viral-like growth in the volume of drug testing in the system that began a decade ago. This new CWCI study builds on that initial research, using more recent and detailed data. Utilization of quantitative drug tests between 2007 and 2014 increased by 2,431 percent. Quantification of opiates remains the leading test by volume, followed by quantification of substances (PCP/Cocaine/Ethanol) that would be illicit or problematic in conjunction with the use of prescribed medications. Among the injured workers who were drug tested, the average number of tests per employee per date of service more than tripled driving the average amount paid per date of service up from $96 in 2007 to $307 in 2014 – a 220 percent increase.

There is evidence of a migration to physician in-office/non-laboratory drug testing. In 2008, 74 percent of Urine Drug Tests (UDT) services were provided by just four laboratories, but during the ensuing four years the mix of providers shifted, with the big laboratories accounting for a declining share of the market while the number of non-laboratory providers billing for these services increased. Between 2008 and the end of 2014, the total number of UDT providers receiving workers’ compensation reimbursements more than doubled from 428 to 876.

Absent an accepted empirical, evidence-based protocol on the appropriate level and scope of testing, it is difficult to reconcile the noted increases in the volume and variety of drug testing with clinical appropriateness and favorable outcomes for the injured worker. There is likely a dearth of empirical evidence showing improved clinical outcomes when UDT is used for patient adherence.

Security Officer Gets Year in Jail for Exaggerating Injury

A former private security officer was sentenced to jail for five felony counts of workers’ compensation fraud stemming from an “accident” in 2009. Howard William Neel, 59, of Oroville, was sentenced to one year in the Butte County Jail as a condition of three years of probationary supervision. During that time Neel will also be required to complete a theft awareness and financial management program and to pay restitution to the workers’ compensation program.

According to the Butte County District Attorney’s Office, Neel was working as a private security officer for a local security company in December 2009 when another driver slightly backed into his Crown Victoria at a gas station. Neel claimed extensive back, neck and leg pain. He was treated at Enloe Medical Center and was taken off work.

In subsequent medical appointments, Neel told doctors the impact to his vehicle at the gas station had been so severe that his vehicle was “spun around”, knocking him down. But investigators obtained surveillance tape from the gas station and found the collision to be minor. The video showed Neel walking normally after the crash, but he started limping when the other party involved saw him. When that individual left, Neel started walking normally again.

Neel was seen by several doctors and repeatedly denied any back, neck or leg injuries prior to the December 2009 event. However, investigators found Neel suffered the same type of back injury while lifting boxes 10 years prior, which was also treated under the worker’s compensation system.

Additionally, Neel used a cane when he went to doctors’ offices, but undercover surveillance tapes showed him without any cane while working around his house or with his horses.