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Tag: 2015 News

DWC Proposes More Modifications to Chronic Pain Guidelines

The Division of Workers’ Compensation (DWC) has posted a first 15-day notice of modification to the proposed Chronic Pain Medical Treatment Guidelines and the Opioids Treatment Guidelines of the Medical Treatment Utilization Schedule (MTUS) regulations to the DWC website. Members of the public are invited to present written comments regarding the proposed modifications to until 5 p.m. on December 19. The proposed modifications include:

1) Clarification of the definition for Chronic Pain as pain “lasting three or more months from the initial onset of pain” to use the same definition set forth in section 9792.20 and to remove inconsistencies in the proposed Chronic Pain Medical Treatment Guidelines, the Opioids Treatment Guidelines and section 9792.23(b)(1).
2) Replacement of the words “must” and “required” with “should” and “recommend” where appropriate in the proposed Opioids Treatment Guidelines to clarify that guidelines set forth in the MTUS are designed to assist providers by offering an analytical framework for the evaluation and treatment of injured workers and is not intended to mandate specific clinical practices.
3) Removal of the phrase “alternative therapies do not provide adequate pain relief and” from section 9792.24(b) to prevent misinterpretation that opioids cannot be prescribed until a clinical history established inadequacies of all alternative therapies listed in the proposed Opioids Medical Treatment Guidelines.
4) Addition of pregnancy as a condition for consideration when tapering opioids with reference to the Medical Board of California’s guidelines for further guidance.
5) Removal of the statement that naloxone is “not recommended for patients on chronic opioid treatment” to reflect evolving scientific knowledge on the benefits and risks of this medication to treat opioid overdose.
6) Deletion of the words “Soft-Tissue” from a section heading in the proposed Opioids Treatment Guidelines to clarify that the recommendations for “Moderate to Severe Injuries” are not limited to soft-tissue injuries.
7) Formatting changes, corrections to typographical errors, and language clarifications.

Text of the regulations can be found on the proposed regulations page.

Cal/OSHA Fines Kaiser Foundation Hospitals $149,900

Cal/OSHA cited Kaiser Foundation Hospitals in Vallejo $149,900 for exposing workers to injury and infection from used needles at the hospital’s collection box for biomedical waste. At least three custodial employees have been stuck by needles while attempting to empty the deposit box, which frequently overflowed and prevented the lid from closing properly. All three employees have been given prophylactic medication to prevent disease or unwanted consequences. The first injury occurred in 2013 and the other two this year.

“Cal/OSHA will always issue citations in cases where employers willfully disregard employee health and safety,” said Cal/OSHA Chief Juliann Sum. “Kaiser should have had safety measures in place before employees were injured.”

Cal/OSHA cited Kaiser for five workplace safety violations of the bloodborne pathogens standard, which requires employers to protect workers from coming into contact with blood or other disease-carrying body fluids. Two of the violations issued to Kaiser are classified as willful serious, as evidence shows that the employer was aware that an unsafe or hazardous condition existed and made no reasonable effort to eliminate the condition. The hazardous conditions were corrected after Cal/OSHA’s inspection.

“Hospital workers are exposed to known hazards on a daily basis, and their employers have a responsibility to recognize these hazards and protect their employees,” said Christine Baker, Director of the Department of Industrial Relations (DIR). Cal/OSHA, officially known as the Division of Occupational Safety and Health, is a division of DIR.

Cal/OSHA’s American Canyon office opened the investigation in June after receiving a complaint. Kaiser members deposit their used needles through a hinged slot on the metal box, which resembles a postal mailbox. The needles fall into an inner plastic disposal box inside to contain biomedical waste. Employees transferred the contents into a larger disposal container for collection by Kaiser’s waste hauling contractor.

Cal/OSHA investigators learned that employees were instructed to clean the box using a broom and dustpan. When those tools proved inadequate, employees had to reach into the box to remove spilled waste, even though needles were often deposited without a protective cap.

Kaiser replaced the kiosk with two larger disposal units following Cal/OSHA’s inspection, and now requires they be monitored every 30 minutes.

Employer Group “Welcomes” Investigation of Opt-Out Programs

Business Insurance reports that an organization working to create workers compensation opt-out programs in various states says it “welcomes” an upcoming investigation by the National Conference of Insurance Legislators into alternative workers comp systems.

NCOIL’s Workers’ Compensation Insurance Committee voted at its annual meeting last month to investigate opt-out programs. The decision was based on reports by National Public Radio and investigative journalism website ProPublica Inc. that criticized programs allowing employers to opt-out of state workers comp systems and profiled workers who were unable to receive benefits under opt-out programs.

“Though NCOIL has taken no position on these unique programs, we’d be remiss if we didn’t look at the issue further – especially since there’s movement in other states to let employers opt out of state workers’ compensation requirements,” North Dakota Sen. Jerry Klein said in the statement. Sen. Klein, a Republican, is chairman of NCOIL’s workers comp committee.

The Association for Responsible Alternatives to Workers’ Compensation worked with legislators in Tennessee and South Carolina to draft workers comp opt-out legislation this year. Those bills are partly based on similar workers comp programs in Texas, which has allowed employers to opt out of buying workers comp insurance for more than 100 years, and Oklahoma, which passed opt-out legislation in 2013.

In a statement to Business Insurance, the association said it “welcomes an opportunity to provide NCOIL with the benefit of its experience with the workers’ compensation option ” Experience shows an option results in improved employee outcomes and creates significant employer savings.”

Meanwhile, Tennessee legislators reportedly are gearing up to reintroduce workers comp opt-out legislation in 2016 after a proposal earlier this year failed to move forward.Tennessee state Sen. Mark Green and Rep. Jeremy Durham, both Republicans, in February introduced the Employee Injury Benefit Alternative, which would allow private employers to opt out of the state’s workers comp system if they provide alternative coverage for injured workers.

Despite amendments that included revisions to permanent partial and permanent total disability levels, critics maintained that the proposed benefits still weren’t on par with what’s currently available to injured workers under the state law.

Ultimately, the Tennessee Advisory Council on Workers’ Compensation decided not to recommend the legislation proposed this year.Sen. Green reportedly told The Tennessean newspaper last week that a new opt-out bill will be ready by 2016.

More than Half of U.S. Doctors Show Symptoms of Burnout

Burnout among U.S. doctors is becoming more common and now affects more than half of practicing physicians, according to a new study reviewed by Reuters Health. About 54 percent of U.S. doctors experienced at least one symptom of burnout in 2014, compared to about 46 percent of doctors in 2011, researchers report in Mayo Clinic Proceedings. Overall, the researchers found that doctors are about twice as likely to experience burnout as the average U.S. worker.

“Things are unfortunately getting worse for physicians,” said lead author Dr. Tait Shanafelt, of the Mayo Clinic in Rochester, Minnesota. Through a partnership with the American Medical Association, the researchers invited nearly 36,000 U.S. doctors to take a survey in 2014 and compared the responses to a similar survey from 2011.

Of the 6,880 doctors who responded to the 2014 survey, about 47 percent reported high emotional exhaustion, about 35 percent felt depersonalized or saw less value in their work and about 16 percent felt a low level of personal accomplishment.

Burnout rates varied between specialties, with rates topping 60 percent among doctors in emergency medicine, family medicine, urology, rehabilitation and radiology.

Doctors working in urology, rehabilitation, family medicine, radiology, orthopedic surgery, dermatology, internal medicine, general surgery, pathology, psychiatry and general pediatrics all saw significant increases in burnout rates between 2011 and 2014.

Despite no increase in the number of hours worked, only 41 percent of all doctors said they were satisfied with the balance between their work and personal lives, down from about 49 percent in 2011.

In an editorial, Dan Ariely and Dr. William Lanier of Duke University in Durham, North Carolina, pointed to three main psychological issues in the workplace that likely undermine doctors’ wellbeing: loss of autonomy, mental exhaustion and “asymmetrical rewards” – meaning that success is barely acknowledged while mistakes come with heavy punishments. Shanafelt also pointed to doctors’ heavier workloads and increased clerical responsibilities as examples of potential frustrations.

The study team notes that 75 percent of doctors now work for large healthcare organizations, and meaningful progress toward turning around burnout rates will require work by doctors and their organizations. Dr. Mark Linzer, of Hennepin County Medical Center in Minneapolis, said his research shows that healthcare systems with higher burnout rates also provide less quality care to their patients.

Nations Largest Insurer “Regrets” Entering ObamaCare Marketplace

The CEO of UnitedHealthcare on Tuesday said he regretted the decision to enter the ObamaCare marketplace last year, which the company says has resulted in millions of dollars in losses. “It was for us a bad decision,” UnitedHealth CEO Stephen Hemsley said at an investors’ meeting in New York.

UnitedHealth, the country’s largest insurer, announced last month that it would no longer advertise its ObamaCare plans over the next year and may pull out completely in 2016 – a move that sent shockwaves across the healthcare industry. Hemsley’s remarks double down on his earlier warning that the ObamaCare exchanges remain weaker than expected after two years and that it will take far longer for insurers to profit from the millions of new enrollees.

The company had already eyed ObamaCare’s federal marketplace cautiously since it launched in 2013. UnitedHealth only began selling plans on the exchanges last year. Now, UnitedHealth officials have said that move will result in a half-billion dollars in losses over two years. Hemsley said it was smart to sit out of the exchanges for the first year, but that the company should have held out another year. “In retrospect, we should have stayed out longer,” he said, adding that he believes the marketplace will take more than “a season or two” to develop.

None of the other major health insurers have sounded nearly as gloomy. Anthem recently stated in an SEC filing that it expects to hit earnings targets for 2015. Molina Healthcare CEO Mario Molina told USA Today that the Obamacare exchanges have proven to be a “profitable line of business” and found UnitedHealth’s dilemma “a little puzzling”.

Mitchell Cohen, M.D. Admits Kickbacks in Plea Agreement

Mitchell G. Cohen M.D. is a board- certified orthopedic surgeon who performed spinal surgeries at Pacific Hospital of Long Beach. He is a resident of Irvine, California, and controls two corporate bank accounts under the names Spine Care Center and Mitchell G. Cohen, M.D. , Inc.

Cohen and his attorney signed a written plea agreement in federal court which has now been unsealed. He plead guilty to a single count which charges him with Subscribing to a False Tax Return in violation of 26 U.S.C. § 7206(1). In exchange, the prosecutor agreed to recommend a two-level reduction in the applicable Sentencing Guidelines. The statutory maximum sentence that the Court can impose for violating Title 26, United States Code, Section 7206(1), is 3 years of imprisonment; a one-year period of supervised release; a fine of $100,000; and a mandatory special assessment of $100.

As part of the plea agreement, Cohen agreed to the statement of facts that recited essentially the following. He accepted illegal kickback payments from Michael D. Drobot and a marketer in exchange for performing spine surgeries at Pacific Hospital. Cohen concealed the illegal kickback payments from his patients and the insurance carriers that paid for the patient’s services. He was paid between approximately $5,000 and $15,000 in kickbacks for every spinal fusion surgery performed at Pacific Hospital and deposited kickback payments primarily into his Spine Care Center bank account. Spine Care Center had no legitimate business purpose other than acting as the recipient entity.

In 2009, 2010, 2011, and 2012, Cohen caused Spine Care Center to file a Corporation Income Tax Return, Form 1120, claiming the illegal kickback payments as gross receipts of Spine Care Center. Cohen knew that the illegal kickback payments were not gross receipts of Spine Care Center, but instead should have been reported as individual income on his Individual Income Tax Return. Thus he failed to report $243, 000 in 2009, $214,100 in 2010, $426,335 in 2011, and $394,611 in 2012. Had he properly reported this income he would have been assessed an additional $402,139 in individual income tax. Thus he agreed to payment of no more than $402,139 restitution for taxes.

In 2012, Drobot and Cohen agreed that Drobot would pay him $15,000 in kickbacks for each posterior lumbar interbody fusion surgery performed at Pacific Hospital, and between $5,000 and $7,500 in kickbacks for each cervical fusion spine surgery performed at Pacific Hospital, provided those surgeries were performed using spinal hardware purchased from International Implants, LLC, a medical device distributor owned by Drobot.

In order to disguise the illegal kickback payments from Drobot Cohen entered into two bogus contracts with Drobot’s business entities. First, a Research, Product Development and Training Agreement where he purported to provide consulting services in exchange for a monthly payment of $25,000. Cohen however, provided few legitimate consulting services. Instead, the payments were purely kickbacks for spinal surgeries.

In addition Cohen entered into an Outsourced Collections Agreement with Pacific Hospital. The Collection Agreement provided that Cohen would assist Pacific Hospital in collecting its fees for spinal surgeries from insurance carriers, and that in return Pacific Hospital would pay Cohen fifteen percent of the total amount collected. In reality the collection was done by Pacific Hospital staff, without assistance from Cohen.

In total, Cohen received approximately $1,645,225 in illegal kickback payments from Drobot and the marketer between 2008 and 2013.

Beginning in or around 2004, Cohen entered into an agreement with California Pharmacy Management (“CPM”), an in-house dispensary management company owned by Drobot, and later another Drobot entity Industrial Pharmacy Management, in which the Dispensary Management Companies purported to manage Cohen’s in-office pharmacy in return for fifty percent of the gross collections resulting from prescriptions filled at defendant’s pharmacy. In reality Cohen was paid varying amounts averaging between $20,000 and $40,000 per month as an inducement to allow the Dispensary Management Companies to operate his in-office pharmacy and to gain access to his patients including, in particular, defendant’s worker’s compensation payments.

As part of the Plea Agreement Cohen agreed to cooperate fully with the US Attorneys Office, the Federal Bureau of Investigation, the United States Postal Service – Office of Inspector General, the Internal Revenue Service, and, as directed by the USAO, any other federal, state, local, or foreign prosecuting, enforcement, administrative, or regulatory authority.

A similar “cooperation” agreement has been made with other physicians, who are likely to be government informants providing information leading to yet further arrests of colleagues in months to come.

DWC Updates SJDB Voucher Form

The Division of Workers’ Compensation (DWC) has posted a revised Supplemental Job Displacement Benefit voucher form on its website. The voucher form has been updated to conform to Title 8, California Code of Regulations, section 17303.

The Return-to-Work Supplement Program makes supplemental payments to workers whose permanent disability benefits are disproportionately low in comparison to their earnings losses. To be eligible for the fund, an applicant must have a date of injury on or after January 1, 2013 and have received a Supplemental Job Displacement Benefit voucher.

The following notice has been added to the first page of the voucher: “Because you have received this Voucher and are unable to return to your usual employment, you may be eligible for a Return-to-Work Supplement. You must apply within one year from the date this Voucher was served on you. You should make a copy of the Voucher which you will need to apply for the Return-to-Work Supplement. Details about the Return-to-Work supplement program are available from the Department of Industrial Relations website, or by calling 510-286-0787.”

Claims administrators must use the updated form and no longer need to attach a cover sheet with the above notice to the vouchers when they are issued to injured workers.

Philip Sobol M.D. Pleads Guilty and Agrees to Pay $5.2 Million Restitution

Philip A. Sobol M.D. has signed and filed a Plea Agreement in the United States District Court for the Central District of California. He agreed to plead guilty to a two-count information which charges him with Conspiracy, in violation of 18 U.S.C. § 371, and Interstate Travel in Aid of a Racketeering Enterprise, in violation of 18 U.S.C. § 1952.

In paragraph 3 of the Agreement, he agrees to make payment of half of the agreed-upon forfeited amounts and/or restitution totaling $5.2 million no later than 180 days of the entry of his guilty plea, and the remainder no later than 30 days before his sentencing.

Sobol further agreed to cooperate fully with the United States Attorneys Office, the Federal Bureau of Investigation, the United States Postal Inspection Service – Office of the Inspector General, the Internal Revenue Service, and, as directed by the USAO, any other federal, state, local, or foreign prosecuting, enforcement, administrative, or regulatory authority. This cooperation requires him to respond truthfully and completely to all questions that may be put to him, whether in interviews, before a grand jury, or at any trial or other court proceeding.

In exchange, prosecutors agreed to recommend a reduction in the applicable Sentencing Guidelines.

Sobol specifically admitted in this document that “Beginning in or around 2005, and continuing to in or around April 2013, there was an agreement between two or more persons to commit Mail Fraud and Honest Services Mail Fraud, in violation of Title 18, United States Code, Sections 1341 and 1346 and Interstate Travel in Aid of a Racketeering Enterprise, in violation of Title 18, United States Code, Section 1952(a) (3)” He further agreed that he understands that the total maximum sentence for all offenses to which defendant is pleading guilty is 10 years imprisonment; a 3-year period of supervised release; a fine of $500,000 or twice the gross gain or gross loss resulting from the offenses, whichever is greatest; and a mandatory special assessment of $200.

He agreed that he is “in fact guilty to the offenses” and agreed to a statement of facts stating that he agreed to exchange monetary kickbacks in return for the referral of patients to Pacific Hospital for surgical services paid for primarily through the California Workers’ Compensation System (“CWCS”). In paying the kickbacks and submitting the resulting claims for the surgical services, the conspirators acted with the intent to defraud workers’ compensation insurance carriers and to deprive the patients of their right of honest services. Drobot and other co-conspirators offered to pay kickbacks to doctors and chiropractors in return for their referring workers’ compensation patients to Pacific Hospital for spinal surgeries, other types of surgeries, magnetic resonance imaging, toxicology, durable medical equipment, and other services.

Sobol either performed surgeries on the patients at Pacific Hospital himself, or – particularly in the case of spine surgeries – admitted he referred them to other surgeons, with specific instructions to those surgeons that they were to perform the surgeries only at Pacific Hospital, if possible, as a condition of receiving the referrals.

WCAB Panel Limits Use of MPN Second/Third Opinion Process

Edward Bautista injured his ribs, pulmonary system, lumbar spine and right ankle in the course of his employment as a machine operator for Arlon Graphics on April 6, 2014, and he also claimed industrial injury to his psyche and sleep disorder.

He selected orthopedist Dr. Peter Borden as his primary treating physician from within the employer’s MPN. According to the WCJ, the applicant “credibly testified” to symptoms of anxiety which he has verbalized to Dr. Borden who failed to diagnose anxiety or refer applicant for an opinion on the issue of psychological treatment.

Bautista then attempted to utilize the MPN second and third opinion process to obtain a second opinion from a psychologist. The WCJ found that use of the second and third opinion process was not appropriate and that Bautista was ordered to return for an appointment with Dr. Borden and ask Dr. Borden to specifically comment on the need for psychological medical treatment.

Bautista petitioned for Reconsideration/Removal contending that Labor Code section 4616.3 and Rule 9767.7 entitle him to obtain a second opinion from a psychologist he selected in defendant’s Medical Provider Network. Reconsideration/Removal was denied in a split panel decision of Bautista v Arlon Graphics.

The panel majority ruled that under section 4616.3(c) and AD Rule 9767.7, applicant has a right to obtain a second opinion physician in the MPN if he disputes either the diagnosis or the treatment prescribed by the treating physician. In this situation, it is necessary to first obtain a diagnosis from the treating physician regarding the issue in dispute before there can be a basis to exercise the section 46l6.3(h) right to obtain a second opinion. That has no occurred in this case, and the WCJ correctly determined that Dr. Borden should directly “address the issue of a diagnosis of anxiety and whether referral for psychological consult/treatment is reasonable and necessary.”

The dissenting opinion of Commissioner Sweeney disagreed stating “Under section 4616.3(c), applicant has an absolute right to obtain a second opinion from an MPN physician with the education, skills, training and experience to properly evaluate his psychiatric condition. The WCJ’s decision unnecessarily burdens applicant’s right to obtain a psychiatric evaluation by an MPN provider.”

ProPublica Persuades National Conference to Investigate Workers’ Comp Opt Out

In response to a ProPublica and NPR highly critical investigation, the National Conference of Insurance Legislators said it will look into an effort by some of the biggest names in corporate America to opt out of workers’ comp.  This year, a group founded by Walmart and several of the biggest employers in America has pushed a campaign to get laws passed in as many as a dozen states within the next decade. Tennessee and South Carolina are seriously considering such bills.

But now, a national association of state lawmakers has announced that it will investigate a burgeoning effort to let companies opt out of workers’ compensation insurance and write their own plans for how they’ll care for injured workers. The National Conference of Insurance Legislators, whose members serve on insurance committees and often act as gatekeepers for related bills in their states, said the decision was prompted by a ProPublica and NPR story last month that found that employers’ opt-out plans typically provide lower benefits for injured workers, more restrictions and little independent oversight. Texas and Oklahoma currently allow companies to opt out and other states are considering similar plans.

“The issues brought forward by the recent NPR/ProPublica study regarding the Texas and Oklahoma workers’ compensation programs are of significant concern to state legislators responsible for the protection of injured workers,” said North Dakota state Sen. Jerry Klein, a Republican who chairs the association’s workers’ comp committee.

Nearly every state requires employers to carry workers’ comp to provide medical care and lost wages if someone gets hurt on the job. In exchange, workers are barred from suing their employers. But Texas has allowed companies to have no insurance, sometimes forcing injured workers to go to court or arbitration to obtain benefits. And in 2013, Oklahoma passed a law allowing companies there to opt out – while still retaining their immunity from lawsuits – if they adopt an alternative benefit plan.

Proponents say the alternative plans save companies money by removing bureaucracy and providing better medical care.

But ProPublica and NPR analyzed the plans of 120 companies and found that the Texas programs typically cut off medical treatment after about two years, don’t compensate workers for most permanent disabilities and cap payouts for deaths and catastrophic injuries. Workers’ comp typically covers medical care for workplace injuries for life and death benefits for children until they graduate college.

In Oklahoma, companies that opt out must provide the same level of benefits as workers’ comp, but unlike workers’ comp, the benefits are subject to income and payroll taxes. In addition, in almost every plan, workers cannot choose their doctors and must report injuries within 24 hours or risk losing all benefits.

A show of support from the national association would make opt-out bills much easier to pass, while a negative assessment might cause lawmakers to try to block efforts in their states. The group also said it would hold discussions to counter any attempts by the federal government to intervene in state workers’ comp programs.

An earlier ProPublica/NPR investigation found many states have drastically scaled back workers’ comp benefits in recent years. In response, several prominent members of Congress have called for increased federal oversight to ensure states are properly caring for injured workers.