Tag: 2016 News

According to estimates from the Survey of Occupational Injuries and Illnesses (SOII) conducted by the US Bureau of Labor Statistics (BLS) and the California Department of Industrial Relations (DIR), over 470,000 nonfatal workplace injuries and illnesses were reported by private-sector and public-sector employers in California in 2015.

However, California’s overall incidence rate of nonfatal occupational injuries and illnesses remains unchanged at 3.8 cases per 100 workers for full-time employees, the lowest rate in over a decade. There has been a steady decline in injury rates over the last decade. In 2002 the rate was 6 cases per 100 workers for full-time employees.

Of the nonfatal reportable job-related injuries and illnesses in 2015, 77 percent occurred in private industry and 23 percent in state and local government. Reported Days Away From Work incidence rates (injuries and illnesses per 10,000 workers) differ substantially between private-sector and government workers, whether state or local. In 2015, the reported rate of DAFW injury or illness among government workers was approximately twice that of private-sector employers. The Report does not speculate as to the reason for this discrepancy.

The Days Away From Work incidence rate for California private sector industries remained at 1.0 case per 100 workers, equaling the national rate. Nearly 83,000 DAFW injuries, or 76 percent of those in private industry, occurred in service-sector industries. The remaining 26,000 injuries, or 24 percent, occurred in goods-producing industries.

In 2015, employer reports for California show that occupational injuries are more prevalent and the rate of injuries per 100 higher among males than among females. Sixty percent of reported cases with days away from work (DAFW) were for male workers, with 40 percent for females. The incidence rate per 100 workers was also approximately 5 percent higher among males than females. Compared to 2014, the rates for both working men and women dropped in 2015 in private sector.

In 2015, 28 percent of reported Days Away From Work work injuries in private industry in California occurred among workers with less than a year of tenure. At goods-producing firms in the private sector, nearly 35 percent of DAFW injuries and illnesses occurred within a year of hire. In manufacturing, 25 percent of those injuries occurred within a year of hire; in construction and natural resources, however, 45 percent of those injuries occurred within a year of hire. Notably, in the natural resources and mining sector, nearly one-quarter of DAFW cases occurred during the first three months of work. The report does not speculate as to the reason why new hires have more injuries than long term workers.

The highest private-sector injury and illness rate in 2015 is among twenty- to twenty-four-year-olds, with the lowest injury or illness rates at the other end of the age spectrum, those above age sixty-five. Compared to 2014, the DAFW injury and illness incidence rate in 2015 for private-sector employers dropped among sixteen- to nineteen-year-olds, twenty-five- to thirty-four-year-olds and for those age forty-five to fifty-four, while it rose or stayed the same for other age groups.

Transportation and material-moving occupations, food service workers, building and ground maintenance, and office and administrative support work were the occupational groupings with the largest number of lost-time injuries and illnesses. Service occupations also showed high number of injuries and illnesses with reported days away from work in 2015.

Among private-sector workers, the highest number of lost-time injuries were caused by overexertion and bodily reaction, by contact with an object or piece of equipment, and by falls, trips, and slips. Other major causes of lost-time injuries and illness included exposure to harmful substances or environments, transportation incidents and workplace violence.

California employers have been dealing with the ramifications of legal medicinal marijuana for years. Now that voters have passed Proposition 64, legalizing so-called “recreational” marijuana use, the CWCI expects that employers face a new reality of potentially outdated workplace policies, employee accommodation, and the applicability of drug-free workplace guidelines. Workers’ compensation carriers and self-insured employers in particular must begin to consider the impact that Proposition 64 may have on claims processing.

According to the CWCI report “Working Through the Haze: Implications of Legalized Marijuana for California Workers’ Compensation System,” last August the National Conference of State Legislatures adopted a resolution asking the federal government to remove marijuana from Schedule I. But the following day, the Drug Enforcement Agency announced that it would not remove marijuana from its Schedule I classification, reaffirming its determination that the drug’s therapeutic value has not been scientifically proven. Thus it remains illegal under federal law. As a Schedule I drug under the Controlled Substances Act, marijuana may not be prescribed, administered, or dispensed, and it is illegal to possess, use, purchase, sell, or cultivate.

Thus, even in states where medical marijuana is legal, doctors can only write a “recommendation” for the remedy.

But the federal government has decided it has higher priorities than enforcement of its anti marijuana stance. The US Department of Justice has actually formalized a “hands-off’ policy, leaving enforcement of minor drug activity up to the states, while the federal government’s priorities have been restricted to eight significant issues, including the operation of drug cartels, narcotics activity leading to violence, and preventing drugs from being provided to minors. “For states … that have enacted laws to authorize the production, distribution, and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the [priority] interests identified by the Department,” leaving the decision on whether to enforce restrictions on marijuana being sold to minors or trafficked to other states, federal authorities could step in with enforcement. Otherwise, states can decide to legalize, tax, and regulate marijuana.

Out of 25 states that allow medical marijuana, only five explicitly exempt workers’ compensation payers from liability for medical marijuana. And at least one state has no legislation or judicial case law either requiring or prohibiting workers’ compensation payers from reimbursing an injured worker for medical marijuana.

The remainder of the states that allow medical marijuana, including California, rely on analogous statutory language that precludes a private health insurer from being forced to pay for marijuana. In California, Health and Safety Code Section 11362.785(d) specifically provides that nothing in the state’s medical marijuana program shall require any other health insurance provider or health care service plan to be liable for reimbursement for the medical use of marijuana.

But there may be a developing trend toward compelled compensation, if other states follow the lead of New Mexico. Beginning with a New Mexico Supreme Court case in 2014, New Mexico has required reimbursement for medical marijuana pursuant to that state’s workers’ compensation statute requiring provision of “reasonable and necessary” medical treatment services to an injured worker.

And the trend toward finding compensability for marijuana treatment seems to be spreading. Beyond New Mexico, workers’ compensation payers have been required to reimburse payments for medical cannabis in Minnesota, Maine, Connecticut, and Massachusetts. In two cases from Maine, for example, the Appellate Division of the workers’ compensation system upheld rulings from an administrative law judge that marijuana could be a compensable form of medical treatment for injured workers.

Only two reported cases at the California WCAB have addressed a claims administrator’s liability for marijuana treatment. The first, in 2012, Cockrell v. Farmers, did not directly resolve the question of compensability for medical marijuana. Instead, the Appeals Board merely returned the matter to the trial level for consideration of the impact, if any, of the prohibition against payment for marijuana by health insurance providers under Health and Safety Code §11362.785(d). It appears the case was thereafter resolved by settlement. But in 2013, a second case, Pedro de Dios v. Carroll’s Tire Warehouse, specifically found that the workers’ compensation carrier was not liable for reimbursement of medical marijuana under the Health and Safety Code exemption.

David Miller is a stickler for safety at the Goodwill stores he runs in central California. So when Applied Underwriters offered his nonprofit a deal on insurance for workplace accidents if he could minimize injuries, he jumped at the opportunity. Even better, Applied was part of Berkshire Hathaway Inc., the firm controlled by Warren Buffett.

But according to the report in the Insurance Journal, these days, he wishes he hadn’t. The contracts Miller signed have turned into a burden for his organization. It paid $1.8 million to cover about 350 employees, many disabled or disadvantaged at 17 locations from Lodi to Visalia. When the nonprofit switched carriers last year, Applied demanded hundreds of thousands of dollars more to fund remaining claims.

“I’m trying to make money in my stores to help people,” said Miller, chief executive officer of Goodwill Industries of San Joaquin Valley. “Instead, I’m writing big checks to an insurance company that I probably don’t even owe.”

Miller’s nonprofit is one of dozens of employers – from a bike-courier service in Manhattan to a linen-supply company in Sacramento – that have sued Applied for deceptive practices. The businesses allege the insurer peddled products regulators hadn’t approved. They complain about being surprised by large bills based on formulas that stacked the deck in the insurer’s favor. California, Vermont and Wisconsin have banned some Applied plans.

The insurer says that its products save employers money and that customers were aware of the terms. Companies that are litigating account for only about one in 400 policies sold, said Jeffrey Silver, Applied’s lawyer. The plans didn’t work out in their favor because they had claims that caused costs to go up, he said. They’re now “taking advantage of a regulatory situation” to avoid paying what they owe. About 90 percent of employers renew, Silver said.

The Berkshire subsidiary agreed to orders by regulators in California, Vermont and Wisconsin to halt some of its sales. But the company continues to press its case in California, its largest market, where it has asked a state court judge to overturn the insurance commissioner’s decision that its plans were illegal.

“It’s an innovative product,” Silver said. “And sometimes when you have an innovative product, regulators take a while to catch up to it. And that’s exactly what we think is happening here.”

As courts weigh these quarrels, this much is clear: It’s a lot of hot water for one of Buffett’s companies. The billionaire, who didn’t respond to requests for comment, tells Berkshire managers that “there’s plenty of money to be made in the center of the court.” In other words, no need to get close to the line, legally or ethically, to make some extra bucks.

Yet Applied has done just that, according to court filings, public records and interviews with more than two dozen business owners, brokers, consultants, attorneys, regulators and former employees of the insurer. Together, they describe a company that profits by enticing employers to make a financial gamble, even though some say they didn’t fully understand the rules.

It’s hard to pinpoint Applied’s profit. The unit accounts for just a sliver of Berkshire’s insurance business, which also includes Geico and contributed about one-fifth of the $24 billion of net income at Buffett’s firm last year. But state regulatory filings show how lucrative Applied’s workers’ comp plans were. Net income at California Insurance, one of the company’s largest subsidiaries, rose to $65.5 million in 2014 from a loss of $4.4 million five years earlier.

Margins were fat, too. The same subsidiary made more than 35 cents on each dollar in premium revenue it collected every year from 2010 to 2014, while workers’ comp insurers in California posted, in aggregate, an underwriting loss, according to the state’s insurance regulator.

Research presented at the ANESTHESIOLOGY® 2016 annual meeting claimed that millions of people take opioids for chronic back pain, but many of them get limited relief while experiencing side effects and worrying about the stigma associated with taking them. The American Society of Anesthesiologists (ASA) is an educational, research and scientific society with more than 52,000 members organized to raise and maintain the standards of the medical practice of anesthesiology.

The presentation noted that more than 100 million people in the United States suffer from chronic pain, and those with chronic low back pain are more likely than patients with other types of pain to be prescribed opioids. Unfortunately, these medications are addictive and can cause side effects, ranging from drowsiness to breathing problems.

“Patients are increasingly aware that opioids are problematic, but don’t know there are alternative treatment options,” said Asokumar Buvanendran, M.D., lead author of the study, director of orthopedic anesthesia and vice chair for research at Rush University, Chicago, and vice chair of the American Society of Anesthesiologists (ASA) Committee on Pain Medicine. “While some patients may benefit from opioids for severe pain for a few days after an injury, physicians need to wean their patients off them and use multi-modal therapies instead.”

In the study, 2,030 people with low back pain completed a survey about treatment. Nearly half (941) were currently taking opioids. When asked how successful the opioids were at relieving their pain, only 13 percent said “very successful.” The most common answer – given by 44 percent – was “somewhat successful” and 31 percent said “moderately successful.” Twelve percent said “not successful.”

Seventy-five percent said they experienced side effects including constipation (65 percent), sleepiness (37 percent), cognitive issues (32 percent) and dependence (29 percent).

Respondents also had concerns about the stigma associated with taking opioids. Forty-one percent said they felt judged by using opioids. While 68 percent of the patients had also been treated with antidepressants, only 19 percent felt a stigma from using those.

A major pharmaceutical company recently agreed to disclose in its promotional material that narcotic painkillers carry serious risk of addiction and not to promote opioids for unapproved, “off-label” uses such as long-term back pain. Researchers also note a lack of solid studies on the effectiveness of opioids in treating back pain beyond 12 weeks.

Patients with chronic low back pain, persistent pain lasting more than three months, should see a pain medicine specialist who uses an approach that combines a variety of treatments that may be more beneficial, said Dr. Buvanendran. These treatments include physical therapy, bracing, interventional procedures such as nerve blocks, nerve ablation techniques or implantable devices, other medications such as anti-inflammatories and alternative therapies such as biofeedback and massage, he said.

Kathleen McKinney injured her neck and other body parts in 2014 while working as a driver for Enterprise Rent a Car. She filed four separate Petitions for Penalties and Sanctions under Labor Code sections 5813 and 5814. The gravamen of applicant’s theory is that when the RFAs were submitted, defendant had in its possession and control medical reports and records germane to each of the four RFAs and failed to provide the same to WellComp, its UR organization for consideration, causing the RFAs to be denied.

The defendant filed an Answer to each of the four Petitions for Penalties and Sanctions. In answer to Petition for Penalties and Sanctions # 1, defendant asserts that the RFA for Diclofenac ER 100 mg #60 was timely denied by Utilization Review (UR). In answer to Petition #2, defendant asserts that the RFA for two boxes of Salonpas was timely denied by UR;  and in answer to Petition #3, defendant contends that the RFA for trigger point injections was timely denied by UR;  and in answer to Petition #4, defendant also asserts that the RFA for Soma 350 mg. #60 was timely denied by UR. With respect to all four Petitions, it claimed that the WCAB lacks jurisdiction over applicant’s claim for penalties and sanctions.

Each of the four UR determinations identify the documentation reviewed by the physician. In each instance, the documentation reviewed was limited to the actual RFA and the treating physician’s contemporaneous progress report. There is no indication that additional records or documents, including the January 8, 2015 MRI results, were provided to the evaluating doctor.

The MRI findings that were not reviewed by UR note “chronic discogenic endplate changes at several levels,” and go on to describe central and neural forarninal narrowing at several levels, as well as “concentric uncovertebral hypertrophy (3 mm) with a superimposed left paracentral disc protrusion” at C4-C5.

The reason given for the non-certification was “[r]equest does not adequately document myofascial pain syndrome.” However the PTP progress reports dated June 4, 2015; June 25, 2015; and July 23, 2015 state that applicant has myofascial pain syndrome.

The WCJ found that defendant acted with bad faith in its handling of four separate Requests for Authorization of Treatment’ (RFA), making it liable for the imposition of sanctions under the provisions of Labor Code2 section 5813. The WCAB disagreed and reversed the sanctions in the panel decision of McKinney v Enterprise Rent a Car.

The significant issues in this case is jurisdiction of the WCAB to award penalties and sanctions despite the fact that UR was timely. In this regard the defendant argued that any dispute over the medical necessity of a particular treatment modality is within the exclusive purview of Independent Medical Review (IMR).

On the issue of jurisdiction, the WCAB disagreed with the defendant and ruled that Labor Code 5813 specifically authorizes the Appeals Board or a WCJ to order a party, a party’s attorney, or both, to pay any reasonable expenses incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. Similarly, if the employer or its insurance carrier unreasonably delay or refuse to pay compensation and/or provide reasonable and necessary medical treatment to the industrially injured worker, section 5814 authorizes an increase in the delayed compensation payment up to prescribed monetary amounts.

The WCJ determined that defendant’s conduct in handling the four RFAs resulted from its willful failure to comply with its obligations under Administrative Director Rule 10109 because it had access to all of applicant’s medical records and diagnostic testing results but did not take the initiative to insure that complete records were provided to the UR doctor.

On this issue the WCAB panel disagreed with the WCJ. It noted that Administrative Director Rules 9785(g) and 9792.6.1(1)(2) require the RFA to include documentation substantiating the need for the requested treatment. The primary treating physician, and not a claims adjustor, is the one who knows what medical records substantiate the requested treatment. The four RFAs submitted by the PTP did include documentation, and presumably, the records and reports the PTP included with each RFA were those, in her expert medical opinion, that supported the recommended treatment.

Therefore, the WCAB cannot say that under these circumstances, defendant’s failure to take the initiative and submit applicant’s complete medical record to the UR doctor was a willful failure to comply with its regulatory and statutory obligations, or an indication of a bad faith tactic that is frivolous or solely intended to cause delay.

BUT the WCAB did not reach the issue of a defendant’s duty in ensuring that there is a complete record review by the UR doctor since, in this case, it was not shown that defendant abrogated its duty in bad faith or by frivolous action solely intended to cause unnecessary delay.