Tag: 2016 News

The Division of Workers’ Compensation has posted on its website fact sheets and claim forms for injured workers in Chinese, Korean, Tagalog and Vietnamese. The documents were previously only available in English and Spanish.

The fact sheets include questions and answers regarding temporary and permanent disability, qualified medical evaluators and agreed medical evaluators, utilization review, and the Uninsured Employers Benefits Trust Fund. The DWC 1 claim form, which workers file with employers, has also been translated.

The translations were produced pursuant to AB 438, which requires DWC to make available workers’ compensation information in the four specified languages.

The California Dymally-Alatorre Bilingual Services Act, which was enacted in 1973, requires that all state agencies translate materials into any language spoken by 5 percent or more of those served and hire bilingual staff. Previously, the Labor Code mandated that some of the worker’s compensation forms be prepared in English and Spanish, and was silent as to any other language. The obligation of the DWC was clarified by AB 438 which provides that both the DWC and the DIR shall be subject to the Dymally-Alatorre Bilingual Services Act, for purposes of the forms and notices that are required to be provided to injured workers. The new law required the Department of Industrial Relations and the Division of Workers’ Compensation to make specified forms, notices, and fact sheets available in Chinese, Tagalog, Korean, and Vietnamese. The bill also required the Administrative Director to make recommendations regarding any other documents that should be translated into languages other than English, as specified, and require the department and the division to submit the recommendations and any translated documents to the Legislature.

DWC began translating materials before the AB 438 January 2018 deadline required by the bill, and additional materials are in progress. Among them are the application for the Return-to-Work Supplement Program, the Supplemental Job Displacement Non-Transferable Voucher and a glossary of terms relevant to workers’ compensation.

The translated forms and guides can be found on DWC’s website.

A suspected smuggler’s recent attempt to bring hundreds of counterfeit oxycodone pills through the Otay Mesa Port of Entry has raised serious concerns among law enforcement officials because the pills turned out to be ultra-deadly fentanyl.

In Sacramento, California, there have been dozens of overdoses and at least 11 deaths in which individuals believed they were consuming the prescription painkiller Norco, which contains hydrocodone and acetaminophen. Instead these counterfeit tablets contained fentanyl. The Sacramento County Department of Health and Human Services has urged individuals to refrain from taking prescription-type pills that are not prescribed and obtained from one’s own doctor.

The seizure is believed to be the first time that federal officials along the California-Mexico border have intercepted counterfeit oxycodone tablets containing fentanyl as they were being smuggled from Mexico into the United States.

In federal court in San Diego, defendant Sergio Linyuntang Mendoza Bohon of Tijuana, Mexico, was arraigned on a charge that he unlawfully imported a controlled substance. According to a charging document, Bohon attempted to smuggle 1,183 tablets of fentanyl that were labeled as oxycodone, and 5.4 grams of powdered fentanyl.

According to court records, on February 10, 2016, defendant Mendoza Bohon entered the United States at the Otay Mesa Port of Entry as a pedestrian. During the primary inspection, a Customs and Border Patrol Officer observed an unnatural looking bulge on the defendant and he was referred to secondary inspection, where Customs and Border Protection officers found the tablets labeled as oxycodone concealed in his underwear.

During his post-arrest statement, defendant Bohon admitted that he knew that the tablets were “oxy” [oxycodone] and that he was attempting to smuggle the oxycodone into the United States. However, the Drug Enforcement Administration Laboratory confirmed that the pills contained fentanyl and not oxycodone.

“Unsuspecting individuals who illegally purchase oxycodone could potentially die from the ingestion of what turns out to be fentanyl tablets,” said U.S. Attorney Laura Duffy. “We are very concerned that these counterfeit pills could cause serious harm to users. Even miniscule amounts of fentanyl can have devastating consequences for those who abuse it or literally even touch it.”

Last year, the Drug Enforcement Administration released a nationwide public health alert on Fentanyl, a Schedule II synthetic opioid painkiller. Fentanyl and Fentanyl analogues produced in clandestine laboratories can be 100 times more potent than morphine. The drug and its analogues are being produced to a large extent in China. DEA investigations reveal that the Mexican drug cartels, including Sinaloa, are purchasing fentanyl directly from China and producing fentanyl from precursors sourced from China.

In some parts of the country, heroin is being spiked with fentanyl or being replaced by fentanyl. There are a number of reasons why, but it mainly comes down to economics. Fentanyl generates greater profits than heroin.

This case is being investigated by the San Diego Pharmaceutical Task Force, a group formed in 2012. Members include agents from DEA, HSI, the California Department of Justice, Bureau of Investigation, the San Diego Sheriff’s Department, and the United States Attorney’s Office.

Worker’s compensation medical care in California is based upon “evidence based medicine” or EBM. This is an approach to medical practice intended to optimize decision-making by emphasizing the use of evidence from well designed and conducted research. EBM is regarded as the gold standard of clinical practice.

But, scientific integrity took another hit last month when an Australian researcher received a two-year suspended sentence after pleading guilty to 17 fraud-related charges. According to the story in the Washington Post, the main counts against neuroscientist Bruce Murdoch were for an article heralding a breakthrough in the treatment of Parkinson’s disease. And the judge’s conclusions were damning. There was no evidence, she declared, that Murdoch had even conducted the clinical trial on which his supposed findings were based. Plus, Murdoch forged consent forms for study participants, one of whom was dead at the time the alleged took place. Plus, Murdoch fraudulently accepted public and private research money for the bogus study, published in 2011 in the highly reputable European Journal of Neurology.

While criminal cases against scientists are rare, they are increasing. Jail time is even rarer, but not unheard of. Last July, Dong-Pyou Han, a former biomedical scientist at Iowa State University, pleaded guilty to two felony charges of making false statements to obtain NIH research grants and was sentenced to more than four years in prison. Han admitted to falsifying the results of several vaccine experiments, in some cases spiking blood samples from rabbits with human HIV antibodies so that the animals appeared to develop an immunity to the virus.

In 2006, Eric Poehlman, an expert on aging and obesity at the University of Vermont, became the first American scientist sentenced to jail for research misconduct not involving fatalities. He received a one-year plus one-day prison term for fraudulent obesity research that, stunningly, spanned a decade.

Four years later, Scott Reuben, a prominent Massachusetts anesthesiologist and researcher, was found to have faked data in at least 21 studies. Several of them touted positive results from popular painkiller medications. Reuben received six months in prison.

Between 2004 and 2005, Professor Hwang Woo-Suk, a highly regarded, highly funded South Korean researcher at Seoul National University, achieved international fame for his work on embryonic stem cells His reputation quickly unraveled and his research activities were halted when his success in somatic cell nuclear transfer (SCNT) became mired in scandal, particularly when it emerged that many of his data on SCNT were fabricated.

The blog Retraction Watch, run by the Center for Scientific Integrity, does keep an unofficial list of the worst offenders. Of the top-30 — 28 of them are male — by far the most retractions belong to Yoshitaka Fujii, with a mind-blowing 183. An anesthesiologist, formerly of Toho University in Tokyo, Fujii’s fraudulent research on responses to drugs after surgery, spanned 20 years.

And then there is the problem of the “replication crisis” in science. Reproducibility is the ability of an entire experiment or study to be duplicated, either by the same researcher or by someone else working independently. Reproducing an experiment is called replicating it. Reproducibility is one of the main principles of the scientific method.

A recent article in the Economist pointed out that “a rule of thumb among biotechnology venture-capitalists is that half of published research cannot be replicated. Even that may be optimistic. Last year researchers at one biotech firm, Amgen, found they could reproduce just six of 53 “landmark” studies in cancer research. Earlier, a group at Bayer, a drug company, managed to repeat just a quarter of 67 similarly important papers.”

Failures to prove a hypothesis are rarely even offered for publication, let alone accepted. “Negative results” now account for only 14% of published papers, down from 30% in 1990. Yet knowing what is false is as important to science as knowing what is true.

Health insurance companies are amplifying their warnings about the financial sustainability of the ObamaCare marketplaces as they seek approval for premium increases next year.  The Hill reports that , insurers are losing money on their ObamaCare plans at a rapid rate, and some have begun to talk about dropping out of the marketplaces altogether.

While analysts expect the market to stabilize once premiums rise and more young, healthy people sign up, some observers have not ruled out the possibility of a collapse of the market, known in insurance parlance as a “death spiral.”  In the short term, there is a growing likelihood that insurers will push for substantial premium increases.

Insurers have been pounding the drum about problems with ObamaCare pricing. The Blue Cross Blue Shield Association released a widely publicized report last month that said new enrollees under ObamaCare had 22 percent higher medical costs than people who received coverage from employers.

And a report from McKinsey & Company found that in the individual market, which includes the ObamaCare marketplaces, insurers lost money in 41 states in 2014, and were only profitable in 9 states.  

“We continue to have serious concerns about the sustainability of the public exchanges,” Mark Bertolini, the CEO of Aetna, said in February. The Aetna CEO noted concerns about the “risk pool,” which refers to the balance of healthy and sick enrollees in a plan. The makeup of the ObamaCare risk pools has been sicker and costlier than insurers hoped.

“The industry is clearly setting the stage for bigger premium increases in 2017,” said Levitt of the Kaiser Family Foundation.  Insurers will begin filing their proposed premium increases for 2017 soon. State regulators will review those proposals and then can either accept or reject them. “What we’re likely to see is more of a market correction than any kind of death spiral,” Levitt said. “There are enough people enrolled at this point that the market is sustainable. The premiums were just too low.”  

But Dr. Mandy Cohen, the chief operating officer of the Centers for Medicare and Medicaid Services (CMS), said in an interview that there is “absolutely not” a risk of a death spiral or collapse in the ObamaCare marketplaces.  While acknowledging that “companies are needing to adjust” to the new system, she pointed to the 12.7 million people who signed up this year, 5 million of whom were new customers, as a sign of success. “What brings us the most confidence about the long term stability and health of the marketplace is its growth,” Cohen said.

The most prominent insurer eyeing the exits is UnitedHealth, which made waves in November by saying it was considering whether to leave ObamaCare in 2017 because of financial losses. The company last week announced that it is dropping its ObamaCare plans in Arkansas and Georgia, and more states could follow.  

The Department of Health and Human Services argues that the attention on UnitedHealth is overblown, given that the insurer is actually a fairly small player in the marketplaces.  It’s more important to watch what happens with Blue Cross Blue Shield plans, which are the backbone of the ObamaCare marketplaces.

There have been some rumblings of discontent from Blue Cross plans. The plan in New Mexico already dropped off the marketplace there last year after it lost money and state regulators rejected a proposed 51.6 percent premium increase. Now, Blue Cross Blue Shield of North Carolina says that it might drop out of the marketplace because of its losses. Blue Cross of North Carolina CEO Brad Wilson said in an interview that the company had lost $400 million due to its ObamaCare business.  “We’re not alone, and I think that that also is evidence to suggest that there are systemic and fundamental challenges that we all need to have a civilized conversation about,” Wilson said.  He said a key factor in the decision on whether to stay in the market next year will be whether regulators approve whatever premium increase the company ends up proposing so as to try to make up for its losses.  Asked about the risk of a death spiral, Wilson said he is not worried about that happening “tomorrow,” but has concerns if the situation does not change over time.

Early this year the Court of Appeal opened the Pandora’s box of potential litigation against utilization review physicians in the published case of Kirk King v Comppartners, Inc. Now the California Supreme Court granted a Petition to Review the case, potentially leading to an end to this litigation expansion nightmare.

Kirk King suffered anxiety and depression due to chronic back pain resulting from the back injury at work in 2008. In 2011, he was prescribed an anti-anxiety medication known as Klonopin to be provided through Workers’ Compensation. The request for this medication was sent to UR.

Naresh Sharma, M.D, an anesthesiologist who conducted the utilization review determined the drug was unnecessary and decertified it. As a result, Kirk was required to immediately cease taking the Klonopin. Typically, a person withdraws from Klonopin gradually by slowly reducing the dosage. Due to the sudden cessation of Klonopin, King suffered four seizures, resulting in additional physical injuries.

In September 2013 another request for Klonopin was made by the PTP. Ali, a psychiatrist, conducted a second utilization review and also determined Klonopin was medically unnecessary. Neither Sharma nor Ali examined Kirk in-person, and neither warned Kirk of the dangers of an abrupt withdrawal from Klonopin. Sharma and Ali were employees of CompPartners a Workers’ Compensation utilization review company.

King then sued CompPartners, Inc. and Sharma for (1) professional negligence; (2) negligence; (3) intentional infliction of emotional distress; and (4) negligent infliction of emotional distress. Kirk’s wife, Sara King, sued for loss of consortium. The trial court sustained defendants’ demurrer without leave to amend. The Court of Appeal sustained the demurrer but reversed the denial of leave to amend.

CompPartners contended the Labor Code set forth a procedure for objecting to a utilization review decision, and that procedure preempted the Kings’ complaint. The Kings contend the trial court erred in sustaining the demurrer because their causes of action are not preempted by the Workers Compensation Act.

The Court of Appeal said that “To the extent the Kings are faulting Sharma for not communicating a warning to Kirk, their claims are not preempted by the WCA because that warning would be beyond the “medical necessity” determination made by Sharma. To the extent the Kings are faulting Sharma for incorrectly deciding the medical necessity decision because Klonopin was medically necessary until Kirk was weaned, and thus a particular number of pills, e.g., 10, 20, should have been authorized for weaning, the Kings’ claims are preempted by the WCA because the Kings are directly challenging Sharma’s medical necessity determination.”

The decision concluded that the trial court “should have granted the Kings leave to amend because it is possible… that, when more details are provided they could support a conclusion that, under the circumstances, the scope of Sharma’s duty included some form of warning Kirk of or protecting Kirk from the risk of seizures.”

The King case will be the workers’ compensation high profile case for the remainder of the year. The list of Amicus parties already includes many stakeholder organizations such as the California Workers’ Compensation Institute, the California Chamber of Commerce, the California Applicant’s Attorneys Association and more. Workers’ compensation UR and IMR seems to be constantly under attack. The King case provided another opportunity to open the floodgates of litigation against employers, and vendors in the compensation echosphere.