Tag: 2017 News

The Workers’ Compensation Appeals Board (WCAB) has adopted its final Rules of Practice and Procedure (Rules) implementing Senate Bill 1160 (SB 1160).

The Office of Administrative Law has filed the WCAB’s new Rules with the Secretary of State. The new Rules will become effective on March 26, 2017.

Any lien claimant who filed a lien before January 1, 2017 that was subject to a filing fee under Labor Code section 4903.05 is required to file a “Supplemental Lien Form and 4903.05(c) Declaration” on the form approved by the Appeals Board before July 1, 2017.

The Appeals Board has already approved the Supplemental Lien Form and 4903.05(c) Declaration for use as an e-form and lien claimants can use that form now. Lien claimants may wish to file this form in advance of the adoption of the rule requiring it and will not have to re-file the form once the rule goes into effect.

The Division of Workers’ Compensation (DWC) has posted frequently asked questions regarding the use of the lien form and Supplemental Lien Form and 4903.05(c) Declaration on its website.

As part of the regulatory process, the DWC held a public hearing on these proposed rules on January 4, and released a transcript of public comments made that day.

Steve Cattolica who represents the California Society of Industrial Medicine and Surgery, a couple other medical societies, as well as the California Workers’ Compensation Interpreters Association, and attorney Steve Rondeau who represents lien claimants both voiced concerns about retroactive requirements for lien documentation under the new rules. They said that some of the required information is not now available or known to the lien claimants since there was not previously a requirement that they collect this information.

Specifically they were concerned with the declaration requirement going forward under Labor Code Section 4903.05 ( c) ( 1) ( e). Lien claimants have to file a declaration under penalty of perjury stating that they have, documentation that treatment has been neglected or unreasonably refused and “many providers are having difficulty assembling this documentation.”

Pilar Garcia, the owner of Statewide Interpreters and Carolina Darond who works for the company both testified that the new requirements are running them out of the business after 19 years of providing interpreting services. Most their complains involve the inability to obtain pre-authorization for interpreting services from carriers and TPAs. Commissioner Sweeney probed their testimony and learned that most of their 315 interpreters are not certified as specified by SB 863.

Darond complained “It’s not fair whatever the rules are for interpreters. You’re putting it so difficult that we can’t do business anymore. And here comes — the other agencies are coming from the other states. Pilar was — it was the Statewide Interpreters for California back then. No, not anymore. Now we are requested by other agencies from the other states because they have the authorization. There’s no money difference between my rates and their rates. It’s the authorization what is changing the problem. They’re not giving it to us because they want to give it to One Call, and One Call is doing the monopoly of the business as you all — you all know that; right?”

The newly adopted Rules, and their related Final Statement of Reasons, are posted on the WCAB’s website.

A Washington lawyer at a prominent firm was arrested in a disguise while trying to sell a copy of a secret lawsuit involving a company that was under investigation by the U.S. Justice Department.

Jeffrey Wertkin was taken into custody in the lobby of the Hilton Garden Inn in Cupertino, California, where he believed he was about to collect $310,000 for selling a copy of the sealed whistle-blower lawsuit to the targeted company.

“My life is over,” Wertkin told the FBI agent. He was charged with Contempt of Court and Obstruction of Justice in violation of 18 U.S.C. § 401(3).

Attorney Wertkin had previously won a coveted job at the Justice Department in 2010. Working on cases related to health-care, he remained there until April 2016, when he left for a job at Akin Gump Strauss Hauer & Feld LLP in Washington. His government pay was about $150,000 per year. At a firm like Akin Gump, where Wertkin defended companies sued under the whistle-blower law, attorneys with his credentials earn as much as $600,000.

Wertkin believed he would hand a copy of a sealed federal Qui Tam complaint to an employee of the company, which was accused in the complaint by a whistle-blower of falsely billing the government. The Qui Tam civil matter was previously filed under seal in January, 2016, pursuant to 31 U.S.C. § 3730(b)(2) and pending before the Honorable Jacqueline Scott Corley in the San Francisco division of the United States District Court in the Northern District of California. Wertkin, who was wearing a wig and using the name of Dan, was met instead by an FBI agent, according to arrest documents unsealed on Feb. 6.

Prosecutors say Jeffrey Wertkin attempted to sell a whistle-blower’s confidential lawsuit against a Silicon Valley company. FBI agents want to know whether Wertkin, who left the government in April, got the lawsuit from someone inside the Justice Department and if he sold other secrets while working there, according to two people familiar with the matter who weren’t authorized to discuss it publicly.

Wertkin, who appeared in San Francisco federal court Feb. 1, was released on $750,000 bail, which was secured by real estate in Washington, D.C., located on 12th Street, Northwest, according to court filings.

The case began with an employee at an unidentified technology security company in Sunnyvale, California, getting a voice mail on Nov. 30. The caller left a phone number and said a sealed False Claims Act lawsuit had been filed against the company, according to the FBI.

When the employee dialed the number, the caller identified himself as Dan and said he could provide a copy of the complaint for a “consulting fee,” the FBI said. He mailed a redacted copy of the cover page to the employee, who notified the FBI. The agency verified that the case has been pending since January 2016.

The employee agreed to secretly record calls to Dan for the FBI. On Dec. 22, Dan said he would provide the full complaint for $300,000, the FBI said. Two weeks later, Dan suggested he get paid in untraceable bitcoins, and said buying the complaint would help the company “get out ahead of the investigation.” The employee unsuccessfully sought to negotiate a cheaper price for the sealed lawsuit, according to the court filings.

On Jan. 19, Dan outlined to the employee his plan to meet on Jan. 31 near Sunnyvale, boosting his price to $310,000 to cover his travel expenses, according to the filings. Five days later, the employee said a colleague named Bill would meet him with the money in a hotel lobby. Dan wanted Bill’s cell phone number to text the location. That proved his undoing.

Bill turned out to be FBI agent William Scanlon. As he had agreed, Scanlon wore a gray Titleist hat and carried a blue duffel bag into the lobby of the Hilton Garden Inn. Dan texted him to find the empty chair in the lobby graced with a newspaper, according to the filings.

The case is U.S. v. Wertkin, 17-70131, U.S. District Court, Northern District of California (San Francisco).

Many patients live with low back pain that radiates to the buttock, groin, thigh, and even knees. The challenge for patients, and often their doctors, is determining the origin of the pain — the hip, the spine, or both.

A new article published in the February Journal of the American Academy of Orthopaedic Surgeons (JAAOS) outlines the identical symptoms associated with hip and spine pain and discusses the diagnostic steps and tests required to treat them appropriately.

Typically, groin pain, and/or difficulty putting on shoes or getting in and out of a car, are associated with a hip condition.

Buttock or back pain, with or without a tingling sensation, most likely originates in the spine.

However, patients with complex “hip-spine syndrome” have lower back and hip pain with no clear source of the discomfort. Hip arthritis, for example, can increase pressure on the lower back.

“In these instances, similar or overlapping symptoms may delay a correct diagnosis and appropriate treatment,” said article author Afshin Razi, MD, an orthopaedic surgeon and clinical assistant professor at NYU Langone Hospital for Joint Diseases.

The article recommends that patients provide a detailed health history and undergo a comprehensive physical examination that includes an assessment of gait (how the patient walks); hip and back range of motion; posture; pelvic, lower limb, and spinal alignment; loss of muscle (atrophy); previous surgical scars; and limb-length discrepancy.

“Plain and advanced imaging studies and diagnostic injections also can be used to further delineate the primary problem and guide the appropriate sequence of treatment,” said Dr. Razi.

Diagnoses for hip and spine pain can include hip osteoarthritis, a stress fracture, osteonecrosis of the hip (a blockage in blood flow to the hip), a labral tear (damage to the cartilage that surrounds the hip), disc herniation and possible pinched nerves, stenosis (narrowed spinal canal causing nerve pain), sacroiliac joint dysfunction, and other less common sources of pain.

“Focusing on both the spine and the hip as potential causes of pain and disability may reduce the likelihood of misdiagnosis, and the management of conditions affecting the spine and/or hip may help reduce the likelihood of persistent symptoms,” said Dr. Razi.

Bay Sleep Clinic, its related businesses – Qualium Corporation and Amerimed Corporation – and their owners and operators, Anooshiravan Mostowfipour and Tara Nader have agreed to pay $2.6 million to settle allegations that they fraudulently billed the Medicare program. The allegations against the Defendants were set out in an amended False Claims Act complaint filed by the United States on August 8, 2016.

According to the complaint, Saratoga, Calif., residents Mostowfipour, 58, and Nader, 58, own Amerimed Corporation (that was doing business as Amerimed Sleep Diagnostics and Amerimed CPAP Specialists) and Qualium Corporation, which operated twenty sleep clinics doing business as Bay Sleep Clinic.

The government alleged that as early as April 2002, Mostowfipour, Nader, and their businesses fraudulently billed Medicare for sleep tests performed by technicians lacking the licenses or certifications required by Medicare payment rules.

In addition, the Defendants billed Medicare for sleep tests that allegedly were conducted at unenrolled and unapproved locations. Specifically, the government alleged that defendants regularly falsified documents to make it appear that a sleep test had been given at one of the defendants’ two locations which had been approved by Medicare, when, in fact, the test had been conducted at another, unapproved facility.

Additionally, the government alleged the Defendants fraudulently billed Medicare for medical devices in violation of Medicare rules and regulations that prohibit providers of diagnostic sleep tests from supplying medical devices and from sharing a sleep laboratory location with a durable medical equipment supplier.

The whistleblower action, captioned United States ex rel. Dresser v. Qualium Corp., et al., Civil Action No. 12-1745 (N.D. Cal.), was filed under the qui tam provisions of the False Claims Act. The False Claims Act allows for private persons, such as Elma F. Dresser in this case, to file actions to provide the government information about wrongdoing and then obtain a portion of the government’s recovery. Dresser will receive approximately $545,000.

As is permitted by the statute, the United States intervened in the action in May 2015 and filed its initial complaint in intervention in September 2015.

As part of the agreement, the defendants have voluntarily terminated their two existing Medicare enrollments and agreed not to re-enroll as providers or suppliers in the Medicare program for a period of three years.

Assistant U.S. Attorneys Erica Blachman Hitchings, Robin Wall, Kimberly Friday, and Tom Green handled the case with assistance from Jacqueline Hollar, Tina Louie, Bonny Wong, and Stefania Chin. The investigation was conducted by the U.S. Attorney’s Office for the Northern District of California and HHS-OIG.

The claims resolved by this settlement are allegations only and there has been no determination of liability.

Last year Assemblyman Adam Gray, D-Merced, introduced and successfully passed Assembly Bill 1244 to crack down on medical providers who defraud the system. AB 1244 provides that If a vendor is convicted of fraud, then they are automatically suspended from treating in workers’ compensation, and the Administrative Director is to create a list of all names of suspended vendors on their website.

Last week, the Department of Industrial Relations, using new powers from Gray’s bill, announced that seven Southern California medical providers had been suspended from treating workers’ compensation payments for fraudulent billings.

As AB 1244 was moving through the process last year, Gray inserted and then quickly removed other language that seemingly relieved employers and insurers of responsibility for some small claims for “cumulative trauma” – injuries that accumulate over months or years, rather than stem from one incident.

This year he has introduced Assembly Bill 221, a new Gray bill that’s similar in thrust to last year’s abandoned language. The proposed law, if passed, will add the following language to Labor Code section 4600 that defines medical care.

(i) For claims of occupational disease or cumulative injury filed on or after January 1, 2018, the employee shall have no liability for payment for medical treatment and the employer shall have no liability for payment for medical treatment unless one or more of the following has occurred:
(1) The treatment was authorized by the employer.
(2) The injury to the body part or body parts for which the treatment was provided has been accepted by the employer.
(3) The appeals board, after an evidentiary hearing or stipulation of the parties, finds the injury to the body part or body parts for which the treatment was provided was compensable.
(4) The employee has undergone an evaluation by a qualified medical examiner, pursuant to Section 4600, or an agreed medical examiner and the evaluating physician has determined that the claimed occupational disease or cumulative injury was caused, in whole or in part, by the employment.

According to the Sacramento Bee, Gray’s office says it’s just another effort to crack down on fraud, but lobbyists who work the issue believe there are other motives.

Companies that represent medical providers in seeking workers’ compensation payments for patients’ bills have labeled it a maneuver by employers and/or insurers to shed liability.

Another theory is that it’s an indirect slap by workers’ compensation lawyers against labor unions for their 2012 deal with employers. The California Applicants Attorneys Association, however, denies paternity.

Labor killed last year’s language and will probably kill AB 221. Whatever its origin or fate, it indicates that in the next round of “reform,” cumulative trauma may be on the table.

Cumulative trauma claims have been increasing rapidly and employers and insurers see them as fraught with fraud, while unions are leery of any changes that could deny legitimate claims.m