Tag: 2018 News

Stephen Hom, a San Francisco police officer, suffered an initial industrial injury to his lumbar spine in 2012 in a prior case. The parties in this prior case settled with Stipulations and Request for a permanent disability Award in the amount of 20% permanent disability based on the findings of Primary Treating Physician Dr. William Campbell, who used using the DRE Metric of the AMA Guides to determine the rating.

In 2013, after his initial injury to his lumbar spine, Officer Hom suffered a second admitted industrial injury to his lumber spine, when he was struck by an oncoming vehicle, while on traffic duty. This second injury is the subject of the current litigated case ADJ10658104.

Dr. David Pang served as the AME in the second case. Dr. Pang utilized the ROM method of the AMA Guides to rate applicant’s current whole person impairment (WPI) at 14%, which rates out to 30% PD.

The primary issue at trial was whether defendant has sustained their burden of proof under LC §4664(b) to allow subtraction of applicant’s prior 20% PD award (calculated using the DRE method) regarding his 2012 injury to his lumbar spine, from his current PD level of 30% (calculated using the ROM method) regarding his 2013 injury to his lumbar spine. WCJ found that “apportionment under LC §4664(b) is not applicable in this case.”

The employer petitioned for reconsideration contending that the WCJ erred by not finding overlap between applicant’s two lumbar spine injuries, The WCJ should have subtracted the 20% Permanent Disability (PD) from the first award, from the 30% PD in the second per the apportionment rule set forth in LC §4664(b). Reconsideration was denied in the panel decision of Hom v City and County of San Francisco.

Labor Code §4664(b) provides, “If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof.”

Case law has repeatedly held that defendant has a two-prong burden of proof regarding apportionment under LC §4664(b): (1) Defendant must first prove that a prior award to the same body part exists, AND (2) Defendant must also prove that there is “overlap” of permanent disability between the initial and subsequent injury. This legal standard was set forth in the 3rd DCA case of Kopping v. WCAB (2006) 71 Cal Comp Cases 1229.

In Kopping, the DCA provided an extensive analysis of the seemingly contradictory language of LC §4664(b) and came up with the only interpretation that made sense to them, which was that the defendant has a two-prong burden of proof under LC §4664(b). “…The burden of proving overlap is part of the employer’s overall burden of proving apportionment, which was not altered by section 4664(b), except to create the conclusive presumption that flows from proving the existence of a prior permanent disability award.”

The WCAB affirmed this two-prong analysis for defendant’s burden of proof under LC §4664(b) in the panel decision of Laster v. City and County of San Francisco, 2014 Cal. Wrk. Comp. PD LEXIS 201.

In the writ denied case of Contra Costa County Fire Protection v. WCAB, (Minvielle), (2010), the WCAB interpreted the burden of proving “overlap” of disabilities to mean that the defendant must use the same metric to measure PD on both the initial and subsequent injuries.

Unfortunately, Dr. Pang, has not accurately understood the correct legal theory to apply in this case.

As Apple pushes deeper into health care with the Apple Watch, CNBC reports that the company is developing a plan to help people who are recovering from knee and hip replacement surgeries.

Apple announced a partnership with medical device company Zimmer Biomet, to combine a new app along with health-tracking data from the smartwatch to help determine why certain patients recover faster than others from the procedures. The companies are also working together on a clinical study.

Apple has its sights set square on the $3 trillion U.S. health-care sector and is continuously exploring medical applications for the watch, most recently adding an FDA-cleared EKG sensor. When it comes to orthopedics, more than than 1 million Americans get knee and hip replacements every year, and Zimmer Biomet is among the biggest manufacturers of reconstructive products.

Apple and Zimmer Biomet have created a mobile app called mymobility, which aims to help guide patients through their surgery to improve their experience, as well as their health outcomes. It includes educational resources, exercise videos and a way for patients to contact their surgeon and care team with questions and concerns.

The Apple Watch will track steps and heart rate data, allowing patients to share that information with their doctors to provide a clearer picture of how they’re doing after surgery and to analyze potential setbacks. For example, if a patient is concerned about the level of pain, the care team could see that the patient walked five miles the previous day, so the problem may be overexertion rather than a serious complication.

Apple and Zimmer Biomet are hoping to enroll 10,000 people in the U.S. in the study. The app is initially available only to patients who enroll in the study, but it will eventually be rolled out to everyone, a spokesperson for Zimmer Biomet told CNBC. Participants who don’t own an Apple Watch will receive one for the duration of the project. Fitbit has also looked at using its fitness trackers to monitor patients after surgery.

Zimmer Biomet CEO Bryan Hanson said in a statement that the partnership with Apple marks “one of the largest evidence-gathering clinical studies in orthopedic history.”

Apple Chief Operating Officer Jeff Williams said in a separate statement that the new app lets patients and doctors connect in a way that was “not previously possible through traditional in-person visits.”

The study is the second of its kind for Apple. In September 2017, the company kicked off its Heart Study in partnership with Stanford University, testing to see if it could detect in people a type of heart health irregularity called atrial fibrillation.

Williams told CNBC in November that Apple is open to working with some of the largest health-care companies in the space and said, “We have taken a thoughtful approach to this and embraced the medical community.”

Apple is tackling among the biggest and fastest growing segments of medicine. Given the aging of the population, the number of people who receive knee and hip replacement surgeries is expected to rise in coming years.

Dan Williamson, Zimmer Biomet’s group president for joint reconstruction, told CNBC a goal for the study is to “reduce anxiety for the patient and make sure the surgeon has the level of visibility they need.”

The company worked with Cedars Sinai hospital in Los Angeles to figure out the optimal amount of activity for people recovering from hip and knee replacements. They reported a magic number of 1,000 steps, meaning those that reached the milestone in the days after the procedure were usually discharged sooner than those who fell short.

In another medical use for the Apple Watch, the company said recently it is donating 1,000 watches for a new study to track binge eating.

The Department of Justice announced that it is requiring CVS Health Corporation and Aetna Inc. to divest Aetna’s Medicare Part D prescription drug plan business for individuals in order to proceed with their $69 billion merger.  The proposed divestiture to WellCare Health Plans, Inc. (WellCare), an experienced health insurer focused on government-sponsored health plans, including Medicare Part D individual prescription drug plans, would fully resolve the Department’s competition concerns.

“Today’s settlement resolves competition concerns posed by this transaction and preserves competition in the sale of Medicare Part D prescription drug plans for individuals,” said Assistant Attorney General Makan Delrahim of the Justice Department’s Antitrust Division.  “The divestitures required here allow for the creation of an integrated pharmacy and health benefits company that has the potential to generate benefits by improving the quality and lowering the costs of the healthcare services that American consumers can obtain.”

The Department’s Antitrust Division, along with the offices of five state attorneys general, today filed a civil antitrust lawsuit in the U.S. District Court for the District of Columbia to enjoin the proposed transaction, along with a proposed settlement that, if approved by the court, would fully resolve the Department’s competitive concerns.  The participating state attorneys general offices represent California, Florida, Hawaii, Mississippi, and Washington.

CVS, the nation’s largest retail pharmacy chain, and Aetna, the nation’s third-largest health-insurance company, are significant competitors in the sale of Medicare Part D prescription drug plans to individuals, together serving 6.8 million members nationwide.

According to the Department’s complaint, the combination of CVS, which markets its Medicare Part D individual prescription drug plans under the “SilverScript” brand, and Aetna would cause anticompetitive effects, including increased prices, inferior customer service, and decreased innovation in sixteen Medicare Part D regions covering twenty-two states.  The complaint alleges that the loss of competition between CVS and Aetna would result in lower-quality services and increased costs for consumers, the federal government, and ultimately, taxpayers.

Under the terms of the proposed settlement, Aetna must divest its individual prescription drug plan business to WellCare and allow WellCare the opportunity to hire key employees who currently operate the business.  Aetna must also assist WellCare in operating the business during the transition and in transferring the affected customers through a process regulated by the Centers for Medicare and Medicaid Services, an agency within the U.S. Department of Health and Human Services.

CVS, headquartered in Woonsocket, Rhode Island, operates the nation’s largest retail pharmacy chain, owns a large pharmacy benefit manager called Caremark, and is the nation’s second-largest provider of individual prescription drug plans, with approximately 4.8 million members.  CVS earned revenues of approximately $185 billion in 2017.  

Aetna, headquartered in Hartford, Connecticut, is the nation’s third-largest health-insurance company and fourth-largest individual prescription drug plan insurer, with over two million prescription drug plan members.  Aetna earned revenues of approximately $60 billion in 2017.  

As required by the Tunney Act, the proposed consent decree, along with the Department’s competitive impact statement, will be published in the Federal Register.  

Any person may submit written comments concerning the proposed settlement within 60 days of its publication to Peter Mucchetti, Chief, Healthcare and Consumer Products Section, Antitrust Division, Department of Justice, 450 Fifth Street NW, Suite 4100, Washington, DC 20530.  At the conclusion of the 60-day comment period, the court may enter the final judgment upon a finding that it serves the public interest.

SB 880 which became law this summer, would authorize an employer, with the written consent of the employee, to deposit disability indemnity payments for the employee in a prepaid card account. This seemed like a new and novel idea. Unbeknownst to most of the industry, prepaid debit cards have been approved to pay workers’ compensation benefits in California for nine years. It is certainly not a new concept here.

Last April, the California State Fund let InsurCard know that S.B. 880 had been introduced in the California Legislature to allow debit cards as a method of payment for Workers Compensation (WC) claims. The bill at the time would have established a 5-year pilot program at the State Fund. If the pilot was successful, the program would then be expanded beyond the State Fund to other companies.

Bob Mendte, InsurCard’s President, was surprised to hear this news and noted, “We have been using debit cards for WC claim payments in California for nine years. In 2008, InsurCard received detailed written approval from the Workers Compensation Director and has offered the debit card in California since that time.”

InsurCard then contacted the current Workers Compensation Director, George Parisotto, and the Bill’s sponsor to make sure they were aware of InsurCard’s work and extensive experience in the State. Before they met in May, the Director’s staff had reviewed InsurCard’s credentials and the fact that its approvals had been confirmed by the State on several occasions beginning in 2008.

The Director affirmed that InsurCard’s prior approvals would continue to be honored and he recognized that no complaints have been received by the State in the nine years InsurCard has offered its debit card for WC. InsurCard will continue to offer the program in California, one of the 44 states where it does business.

After InsurCard met with the State, the California Legislature changed the bill to allow all payors to use debit cards when the Bill takes effect in January 2019.

InsurCard’s “Total Payment Solution” pays Workers Comp benefits to both claimants and healthcare providers with two network-branded cards: a personalized, reloadable plastic prepaid card for Workers Compensation indemnity payments to injured workers; and a virtual prepaid card for payments directly to healthcare providers. Both products have been praised by the industry for making electronic payments simpler, faster and secure.

InsurCard’s Instant-Issue Property card program lets adjusters deliver benefits to policyholders instantly and is used for property, auto, liability and catastrophe claims. The program is built on an existing, tested platform, ready to deliver in just a few weeks. For information, visit www.insurcard.com.

When it comes to non-drug therapies for back pain, U.S. insurance plans vary widely in what they will cover, claims a new study reported by Reuters Health..

Private and public insurers are missing important opportunities to promote alternatives to opioids, the investigators write in JAMA Network Open.

In fact, researchers found, insurers often provide little or no coverage for evidence-backed interventions for chronic pain such as acupuncture and psychological counseling.

“Insurers can be part of the problem or part of the solution,” said study coauthor Dr. Caleb Alexander, an associate professor at the Center for Drug Safety and Effectiveness at the Johns Hopkins School of Public Health in Baltimore, Maryland. “We see a lot of variability in coverage of non-drug treatments for chronic pain. We have a long way to go.”

Alexander and his colleagues examined the 2017 versions of 45 insurance plans – 15 Medicaid, 15 Medicare Advantage and 15 major commercial plans – to see what non-drug treatments for low back pain were covered. Nearly all the plans covered physical and occupational therapy.

But despite evidence in the literature to support use of acupuncture, 30 of the 45 plans explicitly did not cover it.

Of the 15 Medicaid plans, just three covered psychological interventions for chronic pain. The researchers could not determine the coverage policies regarding psychological interventions for the Medicare or commercial plans.

Therapeutic massage was almost never covered.

While certain types of non-drug therapies were covered by most policies, some insurers had steep co-pays. “You can provide all the coverage in the world, but if it’s not affordable for patients nobody is going to use it,” Alexander said.

Even in the case of physical therapy, a well-established treatment for low back pain, the researchers found barriers to use. Some plans covered two visits, some six, some 12. Some allowed patients to refer themselves for physical therapy, while others required referral by a doctor.

Ultimately, it can be easier to prescribe a medication.

“All too often doctors reach for the quick solution, prescription drugs, especially opioids, to manage pain that would be more effectively and safely treated with non-pharmacological approaches,” Alexander said. “This is a system that is designed with, and fosters, the idea that there is a pill for every ill. And we’re here 20 years after the start of the opioid epidemic, paying the price for that.“

The new study is underscores a “very relevant problem, given the public health crisis we’re in now,” said Dr. Alka Gupta, co-director of the Integrative Health and Wellbeing Program at NewYork-Presbyterian and an assistant professor of medicine at Weill Cornell Medicine in New York City.

“Low back pain is the second most common reasons for primary care visits,” Gupta said. “Over the last several years we’ve seen more and more effective treatments coming out. Those were included in the updated guidelines released by the American College of Physicians in February. We’ve also seen that insurers have been slow to adapt their policy coverage to reflect that information.”