Tag: 2016 News

A class-action lawsuit against World Wrestling Entertainment was filed Monday on behalf of dozens of pro wrestlers.The suit alleges that the wrestlers incurred “long term neurological injuries” in the course of working for the company, while it “routinely failed to care” for them ” in any medically competent or meaningful manner” and even “fraudulently misrepresented and concealed” the nature and extent of those injuries.

The 214 page complaint in the case of Laurinaitis et al v. World Wrestling Entertainment addressed the possibility of the company invoking a contact-sports exception for negligence liability by stating, “WWE wrestling matches, unlike other contact sports, involve very specific moves that are scripted, controlled, directed and choreographed by WWE. As such the moves that resulted in Named Plaintiffs’ head injuries were the direct result of the WWE’s actions.”

The complaint alleges that the “wrestling moves that involve the occupational head trauma that causes CTE and associated diseases from the accumulated effects of TBIs [traumatic brain injuries] are the result of wrestling moves and maneuvers that were performed ‘correctly’ by the Plaintiffs,” the lawsuit said. “In other words, the head trauma that has resulted in injury is the accumulated effect of many impacts to the Plaintiffs’ heads that occurred on a regular, routine basis during their WWE career.”

53 wrestlers including big names like “Superfly” Jimmy Snuka and Joe “Road Warrior Animal” Laurinaitis are the named plaintiffs. In 2015 Snuka was arrested for the 1983 death of his then-girlfriend Nancy Argentino, but he was ruled not mentally competent to stand trial just this past June.

The plaintiffs also include a number of former WWE stars from the 1980s and 1990s, including Ax and Smash of the tag team Demolition, Slick and King King Bundy, but you’ll also find a few names like Sabu, Shane Douglas, and Chavo Guerrero Sr., all of whom wrestled for the bulk of their respective careers in different federations, some of which – including WCW and ECW – now fall under the WWE banner.

WWE superstars are classified as independent contractors, so unlike football or hockey, there’s no union to represent them. The lawsuit makes the claim that the independent contractor designation is incorrect.

The WWE responded with a statement, saying (via Bloomberg) “This is another ridiculous attempt by the same attorney who has previously filed class-action lawsuits against WWE, both of which have been dismissed. A federal judge has already found that this lawyer made patently false allegations about WWE, and this is more of the same.”

The lawyer in question, Massachusetts-based Konstantine Kyros, has previously filed lawsuits against the WWE, with similar claims. The company has succeeded in having some of those suits dismissed, but one involving former WWE wrestlers Vito LoGrasso and Evan Singleton is still being contested in court.

“Plaintiffs were professional wrestlers who were financially compensated to engage in an activity in which physical violence was a known and even purposeful part of the activity,” U.S. District Judge Vanessa Bryant wrote in March, while dismissing complaints against the WWE brought by Russ McCullough, Matthew “Luther Reigns” Wiese, Ryan Sakoda and William Albert “Billy Jack” Haynes, all of whom were represented at least partially by Kyros. “They were injured by other participants in what the plaintiffs describe as a ‘scripted’ performance and thus in a manner that the plaintiff knew or should have reasonably anticipated.”

The NFL and NHL have also seen class-action lawsuits related to players suffering brain injuries. In April, a federal judge upheld a settlement between the NFL and thousands of former players that could result in total payments of $1 billion.

Sean E. O’Keefe was a well-known applicant attorney in San Diego, Public records list him as the lawyer on about 9,000 injured workers’ cases. And he admitted to a grand jury that he paid cash for the bulk of the clients who walked through his door.

In recently released court records summarized in an article by the Center for Investigative Reporting, O’Keefe testified that he paid a firm to send him two-thirds of his clients. He also promised the recruiter, Carlos Arguello, that he would make sure those workers ran up bills at certain medical providers who offered MRIs, sleep studies, psychology, medications and toxicology screenings.

“I was greedy and stupid,” O’Keefe told a San Diego grand jury Dec. 1. “Clients or patients were essentially treated as commodities and billing opportunities.”

O’Keefe’s revelations came in testimony recently unsealed in one of more than a dozen criminal cases against more than 100 people who made their living off the medical care rendered to California’s injured workers.

His testimony highlights Arguello’s recruitment firm, Centro Legal, as a big player. It was so efficient, O’Keefe said, that the kickback cash flow was “almost universal” in the treatment of Latino injured workers in Southern California.

The testimony sheds light on the way injured workers are used for profit, regardless of their medical needs. It also reveals the ongoing efforts of prosecutors to clean up a system that California lawmakers and officials are charged with governing.

O’Keefe, now barred from practicing law, testified that he earned about $1.1 million a year representing injured workers, mostly by collecting a 15 to 18 percent fee from the settlement of their injury cases. He pleaded guilty in August 2014 to federal charges of health care fraud and agreed to cooperate with prosecutors in hopes for a more lenient sentence.

In the recently unsealed San Diego County Superior Court testimony, he broke down how the kickback scheme worked. O’Keefe said he paid Arguello for each client. Arguello has pleaded not guilty to federal charges related to his alleged patient recruiting and referral scheme.

An FBI agent who testified in the case said Arguello’s firm engaged in “guerrilla marketing,” passing out cards at the border crossing to Tijuana, Mexico; putting them on parked cars; and displaying them in restaurants. The cards advised workers that they could earn up to $4,000 per month if they were injured at work.

O’Keefe said Arguello told him which chiropractor or doctor to which the patient would be referred. The doctor, in turn, would cut his or her own deals over the patient’s referrals for MRIs, sleep studies, nerve tests and medicated pain creams. “And so whether I was paying for a referral or receiving a bribe, I could also be exchanging those clients for other clients, so to speak, more clients,” O’Keefe testified.

O’Keefe noted that he didn’t send all of his clients into Arguello’s network of preferred doctors and chiropractors. He said he would engage in some “smoke and mirrors” and “spread the clients around a little bit” so workers’ compensation insurers wouldn’t cry foul over his practices. “Otherwise,” he testified, “you couldn’t do what I’ve been doing for decades.”

Legalization of medical marijuana has been one of the most controversial areas of state policy change over the past twenty years. However, little is known about whether medical marijuana is being used clinically to any significant degree.

A new study, released in the journal Health Affairs and summarized in the Washington Post found that, in the 17 states with a medical-marijuana law in place by 2013, prescriptions for painkillers and other classes of drugs fell sharply compared with states that did not have a medical-marijuana law. The drops were quite significant: In medical-marijuana states, the average doctor prescribed 265 fewer doses of antidepressants each year, 486 fewer doses of seizure medication, 541 fewer anti-nausea doses and 562 fewer doses of anti-anxiety medication.

But most strikingly, the typical physician in a medical-marijuana state prescribed 1,826 fewer doses of painkillers in a given year.

These conditions are among those for which medical marijuana is most often approved under state laws. Researchers ran a similar analysis on drug categories that pot typically is not recommended for – blood thinners, anti-viral drugs and antibiotics. And on those drugs, they found no changes in prescribing patterns after the passage of marijuana laws.

“This provides strong evidence that the observed shifts in prescribing patterns were in fact due to the passage of the medical marijuana laws,” they write.

In a news release, lead author Ashley Bradford wrote, “The results suggest people are really using marijuana as medicine and not just using it for recreational purposes.”

The tanking numbers for painkiller prescriptions in medical marijuana states are likely to cause some concern among pharmaceutical companies. These companies have long been at the forefront of opposition to marijuana laws, funding research by anti-pot academics and funneling dollars to groups, such as the Community Anti-Drug Coalitions of America, that oppose marijuana legalization.

In what may be the most concerning finding for the pharmaceutical industry, the Bradfords took their analysis a step further by estimating the cost savings to Medicare from the decreased prescribing. They found that about $165 million was saved in the 17 medical marijuana states in 2013. In a back-of-the-envelope calculation, the estimated annual Medicare prescription savings would be nearly half a billion dollars if all 50 states were to implement similar programs.

“That amount would have represented just under 0.5 percent of all Medicare Part D spending in 2013,” they calculate.

Cost-savings alone are not a sufficient justification for implementing a medical-marijuana program. The bottom line is better health, and the Bradfords’ research shows promising evidence that medical-marijuana users are finding plant-based relief for conditions that otherwise would have required a pill to treat.

“Our findings and existing clinical literature imply that patients respond to medical marijuana legislation as if there are clinical benefits to the drug, which adds to the growing body of evidence suggesting that the Schedule 1 status of marijuana is outdated,” the study concludes.

One limitation of the study is that it only looks at Medicare Part D spending, which applies only to seniors. Previous studies have shown that seniors are among the most reluctant medical-marijuana users, so the net effect of medical marijuana for all prescription patients may be even greater.

The Bradfords will next look at whether similar patterns hold for Medicaid.

In an open letter to the California workers’ compensation community WCIRB President and CEO Bill Mudge highlights some of the WCIRB’s key initiatives and accomplishments from the past year.

Through broad customer outreach, the WCIRB is actively collaborating to identify product opportunities and services that expand access to information and deliver new insights into the state of the system and its specific cost drivers. Its Senate Bill No. 863 WCIRB Cost Monitoring Report – 2015 Retrospective Evaluation revealed that total SB 863 savings are emerging greater than initially projected. Areas showing significant system-wide savings include reforms on liens and spinal implant surgeries, new fee schedules for physicians and ambulatory surgery centers, and reduced utilization of medical services. However, the Report also indicated that frictional costs, which were projected to decline with the SB 863 reforms, are increasing throughout California. The WCIRB will continue to monitor and annually report on the ongoing effects of SB 863.

The WCIRB has implemented significant enhancements to California’s Experience Rating Plan. including: Effective 2015, a limitation was added to restrict the impact of a single claim in the experience period to no more than 25 percentage points, reducing volatility in experience ratings for small experience rated employers.

Effective 2016, the basis of experience rating eligibility was shifted to expected loss rates (included as part of the WCIRB’s annual June regulatory filing) from pure premium rates (typically approved in November), in order to accelerate the timing of the WCIRB’s issuance of experience modifications to employers. With this shift, which was approved by the Insurance Commissioner, the WCIRB issued 80% of all January 2016 experience modifications more than 90 days prior to policy expiration (compared to 25% under the prior years’ approach based on approved pure premium rates).

Effective 2017, the Insurance Commissioner’s approved variable split point formula will be implemented. This significant change will vary the primary/excess loss split point based on an employer’s size (expected losses), reducing volatility for smaller employers, enhancing the actuarial performance of the Experience Rating Plan, and allowing for future simplification of the experience rating formula.

During 2015, the number of customer touch points with the WCIRB exceeded 2 million for the first time in company history. It expects to see continued growth in 2016 and beyond as additional online features are implemented, like a new coverage search capability for insurer claims adjusters that was launched in March 2016. New outreach efforts include ‘WCIRB Mod Talks’, a series of interactive webinars addressing the 2017 experience rating changes. The first webinar in this series garnered its highest customer attendance to date with over 300 online attendees and more than 150 viewing the recorded event.

Looking ahead, the WCIRB focused on several strategic, multi-year initiatives to further transform customers’ experience with the WCIRB. Among those on the horizon are:WCIRB CompEssentials(TM) – its online e-learning system designed to deliver flexible, on demand training for insurers, agents and brokers and other customer segments. CompEssentials will provide licensed agents and brokers with the opportunity to earn continuing education units.

Comprehensive Risk Summary Report (CRS) – designed to streamline workers’ compensation insurance by enabling authorized agents and brokers the ability to access consistent, objective, trusted WCIRB historical information and data on both experience rated and non-experience rated policyholders.

WCIRB Connect® – the WCIRB’s most widely used online service. With the future release of a ‘My Favorites’ customization, Connect users will be able to quickly access on one page the features and policyholder information they utilize most often.

In addition, the WCIRB continues to pursue the integration of external data sources with WCIRB data to identify new perspectives to enhance pure premium ratemaking and industry research, as well as shape ideas for potential new products and services in the years to come.

The workers’ compensation industry had mixed reactions to the passage of the Affordable Care Act a few years ago. Some believed it would be favorable to the industry by providing coverage for minor medical issues that might have ended up a comp claim had there been no other alternative solution for the patient. However, no matter what might have been the effect, as time goes by ObamaCare continues to suffer setbacks the cumulative effect threatens its very survival.

Earlier this month, the Court of Appeals for the D.C. Circuit issued its decision in Central United Life Insurance Co., v. Burwell, striking down a Department of Health and Human Services (HHS) rule prohibiting the sale and marketing of “fixed indemnity” plans to consumers who did not otherwise have minimum essential coverage. While at first pass the case focuses on a small set of insurance policies, this decision could have broader implications on the individual market and further threaten the sustainability of the risk pools.

This case focused on “fixed indemnity” policies, which are insurance products that pay out a fixed amount for each medical event, regardless of the actual cost of the service (e.g., the policy pays $100 per physician visit). Fixed indemnity policies are considered “excepted benefits” under the Public Health Service Act (PHSA), so long as (i) they are “provided under a spate policy, certificate, or contract of insurance,” and (ii) “are offered as independent non-coordinated benefits.” The Affordable Care Act (ACA) explicitly excluded excepted benefits from minimum essential coverage.

In 2014, HHS promulgated regulations which sought to make it more difficult for consumers to obtain these types of policies. The rules attempted to amend the criteria for when fixed indemnity policies could qualify as excepted benefits. Under the rule, HHS added a new criteria requiring that for fixed indemnity plans to qualify as an “excepted benefit” they can only be provided to individuals who already have minimum essential coverage. As the court noted, this would have effectively eliminated stand-alone fixed indemnity plans altogether.

Under a Chevron analysis, the court determined that HHS overstepped its authority, pointing out that HHS was attempting to amend the PHSA itself. Further, the court noted that Congress did not provide any leeway for HHS to “tack on” the additional criteria. The court rejected HHS’ argument that it has the authority to supplement the PHSA with reference to the Act’s requirement that the fixed indemnity plans must be “offered as independent, noncoordinated benefits.” During oral arguments the government also argued that this is a consumer protection measure and the rules are necessary and appropriate to carry out the insurance mandates of the ACA. The court did not address either argument in its brief opinion.

However, HHS’ argument that these rules are necessary and appropriate to carry out the ACA should not be discounted. Fixed indemnity policies appeal to the young and healthy – the exact population that is necessary to maintain sustainable risk pools and to keep premiums manageable. HHS sought to foreclose the option of offering fixed indemnity plans unless consumers otherwise had minimum essential coverage. With rising premiums in the individual market, having the option of fixed indemnity plans may tempt the young and healthy to select this type of coverage and incur tax penalty, rather than entering the individual market.

The Administration’s approach to this issue was intentional. If this population started using indemnity plans with greater frequency, it could create additional challenges to the ACA Marketplaces. Though the court ruled against the Administration, Congress can and is likely to consider legislative remedies if increased usage of indemnity plans causes deterioration of the ACA Marketplace.