Tag: 2018 News

It is at least the second time a workers’ compensation judge in New Jersey has ruled in favor of a petitioner asking his employer to foot the bill for medical marijuana.

The New Jersey Law Journal reports that a workers’ compensation judge has ordered a New Jersey municipality to pay for an injured worker’s medical marijuana, brushing aside an insurance carrier’s objections stemming from the drug’s status as a controlled substance under federal law.

It is at least the second time a workers’ compensation judge in New Jersey has ruled in favor of a worker asking his employer to foot the bill for medical marijuana. But for insurance companies who write workers’ compensation policies for employers reluctant to jump on the cannabis bandwagon, concerns over the disparity between state and federal law remains.

Workers’ Compensation Judge Lionel Simon ruled on June 28 that Freehold Township must pay for medical marijuana for Steven McNeary, who suffers from muscular spasticity, according to documents. The ruling was first reported in the blog of open government activist John Paff.

A lawyer for carrier PMA Group argued that New Jersey’s medical marijuana law is pre-empted by federal law designating it as illegal, and also cited a recent ruling from the Maine Supreme Court holding that an insurance carrier can’t be ordered to pay for marijuana when it is prohibited under federal law.

Lawyers for PMA Group and for another carrier in the Freehold case, Qual-Lynx, aren’t saying whether they’ll appeal.

Simon’s ruling in McNeary v. Township of Freehold is at least the second in which a workers’ compensation judge in New Jersey ordered an employer to pick up the bill for medical marijuana use by an injured worker. In December 2016, Judge Ingrid French ordered the carrier for 84 Lumber to pay for medical marijuana used by Andrew Watson, who suffered a hand injury on the job. The insurance carrier for 84 Lumber did not appeal that ruling, said Philip Faccenda, the Cherry Hill attorney who represented petitioner Andrew Watson.

In the Freehold case, Simon declined to follow the Maine court’s June 14 ruling in Bourgoin v. Twin Rivers Paper. In that case, citing the conflict between Maine’s medical marijuana law and the federal Controlled Substances Act, the court overruled a lower court that ordered a carrier to pay for marijuana for an injured worker.

The Maine ruling discusses at length the penalties an employer and insurance company could face for violating the Controlled Substances Act, and workers’ comp underwriters are “going to take note and take it into account when they’re making policy decisions,” Kutner said.

The judge in the Freehold case said that both state and federal drug laws were intended to curb the distribution and use of illicit drugs and curtail drug-related crime.

“I don’t  think the New Jersey Medical Marijuana Act is in conflict with that. Certainly I don’t understand how a carrier who will never possess, never distribute, never intend to distribute these products, who will merely sign a check into an attorney’s trust account, is in any way complicit with the distribution of illegal narcotics,” he said, according to a transcript. “What else is important to note here is in this, Mr. McNeary’s case, there is a documented medical need and the concern is that Mr. McNeary is going to become addicted to opioids.”

The Workers’ Compensation Appeals Board has approved new and updated subpoena forms.The fillable forms are posted on the DWC website and will also be made available at the district offices.

There are two types of subpoenas. The first, called subpoena, compels a person to testify before a court, or other legal authority.

The second, called subpoena duces tecum (pronounced “doo-seez tee-kum”), requires a person to produce documents, materials, or other tangible evidence. A subpoena may be requested in any kind of litigation. But these new subpoenas are to direct the appearance of persons or the production of documents or other tangible things before the Workers’ Compensation Appeals Board.

Subpoenas can also be used to compel the attendance of a witness or the production of documents at a deposition.

There is now a new form for a Subpoena (DWC WCAB 30), as well as a new form for a Subpoena Duces Tecum (DWC WCAB 32)

Both a subpoena and a subpoena duces tecum require personal service of the subpoena on the witness. Service of a subpoena should be accomplished by a registered process server, or peace officer. There are alternatives such as when the witness agrees to accept the subpoena in some other way, or to voluntarily appear and produce.

Service of subpoenas may be costly and time consuming.

An alternative to actually physically serving a subpoena on a party, is a process known as a “Notice to Appear” or “Notice to Produce.”

One of the WCAB Rules of Practice and Procedure (California Code of Regulations, Title 8, Section 10532) states that “A notice to appear or produce in accordance with Code of Civil Procedure Section 1987 is permissible in proceedings before the Workers’ Compensation Appeals Board.”

CCP Section 1987 then specifies that service of a subpoena on “a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person,” is not required if you use a Notice to Appear more than 10 days before appearance is required. And documents can be required by way of a Notice to Produce if served more than 20 days before required.” However a Notice to Appear and Produce cannot be used on a non-party. Non-parties must always be served with a subpoena.

There are other requirements specified in CCP Section 1987 that must be carefully followed to use this alternative.

Two local physicians were indicted by a federal Grand Jury as part of Operation “Spinal Cap,” which targeted a long-running health care fraud scheme that generated nearly $1 billion in fraudulent claims to the federal government, the state of California, and private insurers.

The scheme involved more than $40 million in illegal kickbacks paid to doctors and other medical professionals in exchange for referring thousands of patients who received surgeries and other services at Pacific Hospital.

Jacob Tauber, 66, of Beverly Hills, an orthopedic surgeon, and Serge Obukhoff, 62, of Malibu, a neurosurgeon, were charged for their roles in receiving illegal kickbacks to influence the referral of patients to Pacific Hospital. The indictment also includes honest services fraud and Travel Act charges against both Tauber and Obukhoff.

Tauber is currently listed by the DWC Medical Unit as a QME with offices in Beverly Hills, Glendale and Palm Desert. He is listed as a QME in the category of “Spine’ as well as “Orthopedic Surgery.”

According to the 65 page indictment, Tauber performed non-spinal surgeries and referred patients to other surgeons for procedures at Pacific Hospital of Long Beach. Obukhoff practiced out of various medical clinics in Southern California. Influenced by the promise of kickbacks and bribes, Tauber and Obukhoff caused patients with insurance or other covered claims to receive surgeries and services at Pacific Hospital.

The kickbacks involved Philip Sobol M.D. According to the indictment “Sobol would receive remuneration to induce his referral of patients potentially requiring surgery (“Sobol Referrals”) to a “stable” of doctors, including, from at least 2009, defendant TAUBER, and from at least in or about June 2011 to in or about May 2012, defendant OBUKHOFF, who would both know of Sobol’s kickback arrangement with Pacific Hospital, and who would facilitate that arrangement by performing surgery on Sobol Referrals at Pacific Hospital. The illegal kickback and bribe payments would be provided to Sobol under the guise of pharmacy and option agreements.”

In the same indictment, Tauber was separately charged with receiving illicit payments to refer urinalysis specimens to a specific lab. According to the indictment “Advanced Practice Serv1ces, Inc., doing business as Advance Pharmacy Services (“APS”), was a “marketing” entity owned and controlled by Drobot Jr. that steered ancillary service referrals, purchases, and orders involving magnetic resonance imaging (“MRis”), toxicology testing, and durable medical equipment (“DME”) to business affiliates that paid APS for generating such business.”

The case is being investigated by the United States Postal Service, Office of the Inspector General and the Federal Bureau of Investigation, and is being prosecuted by Assistant United States Attorneys Ashwin Janakiram of the Major Frauds Section and Joseph T. McNally and Scott D. Tenley of the Santa Ana Branch Office.

A Corona physician pleaded not guilty to charges of felony workers’ compensation insurance fraud and perjury, and can continue to practice medicine while his case proceeds.

Dr. Sanjoy Banerjee, 42, entered the pleas Monday in Riverside County Superior Court. Banerjee is free on bond. His next court date is Aug. 16.

Along with the arraignment, a judge turned down a request from the California Medical Board to keep Banerjee from practicing medicine until his case is resolved.  

“His alleged conduct is not only unprofessional, but also dangerous, and evinces poor character, a lack of integrity, and and inability or unwillingness to follow the law,” the state’s recommendation to suspend Banerjee’s practice said.

The physician’s attorney countered that the state Medical Board had “failed to meet (the) basic threshold of showing a logical connection ” between the allegations of insurance fraud and perjury and Dr. Banerjee’s fitness or competence to practice medicine.”

The Riverside District Attorney’s Office has charged the QME  May 29, 2018, with two counts of workers’ compensation insurance fraud and five counts of perjury.

Banerjee claims on his website that he is the Founder and Medical Director of Pacific Pain Care.

An investigation conducted by the DA’s Bureau of Investigation found that from November 2014 through December 2016, Banerjee, a Wildomar- and Corona-based workers’ compensation pain management doctor, allegedly illegally self-referred workers’ compensation patients to a clinical laboratory and an office-based surgical center he owned.

Through that laboratory and surgical center, Dr. Banerjee allegedly billed more than $180,000 for urine toxicology testing and/or epidural injections.

Dr. Banerjee also reportedly signed at least five doctor’s reports declaring under penalty of perjury he had not referred patients to his own companies. The investigation revealed that Dr. Banerjee referred some of his workers’ compensation patients to his business, Rochester Imperial Surgical Center, which was located in a patient exam room inside the Pacific Pain Care office suite in Wildomar.

The case, RIF1802535 is being prosecuted by Deputy DA Kristen Allison of the DA’s Insurance Fraud Team.

A stunning investigative report published by the Los Angeles Times provides several examples of Los Angeles police officers and fire fighters filing and recovering what it claims are exaggerated or outright fake “skin and contents” workers compensation claims costing taxpayers billions of dollars.

In one example, the Times reports that former LAPD Officer Jonathan Hall ended his career the way many veteran officers do these days, claiming job-related injuries across most of his body. Hall filed claims saying he’d injured his knees, hips, heart (high blood pressure), back, right shoulder – even his right middle finger.

The ailments had existed for months, in some cases years, and had not previously prevented him from working, Hall said in a recent interview. But he was burned out, the target of an internal affairs investigation and desperate to avoid going back to the station. Hall’s timing raised suspicion, and he was soon videotaped leading scuba dives and lifting heavy equipment despite the alleged injuries.

But, according to the Los Angeles Times, he is far from alone in asserting that so many parts of his body had been injured on the job.

In fact, claims involving at least five injured body parts have become by far the most common in California, according to a Times data analysis of millions of workers’ compensation cases spanning nearly three decades. In the past, injuries to a single body part – a knee, a shoulder, the lower back – were the most prevalent, the data show.

The strategy is common among veteran cops and firefighters who get up to a year off at their full salary, tax free, for each job-related injury their doctor diagnoses. Their employers also pay the associated medical bills and often a hefty cash settlement based on the extent and severity of the injuries.

Multiple lawyers and patients involved with the workers’ compensation system described a similar process: An officer nearing the end of his career goes to an attorney’s office complaining about a sore shoulder and is asked how his knees feel, if his back aches or if he is under a lot of stress. He is then referred to a doctor with whom the attorney has a long-standing relationship.

After a few decades on the job, it’s not hard for a client to fill out what industry insiders call a “skin and contents” case, attorney Paul Young said. Young is an attorney who was a partner at two high-profile Los Angeles-area law firms that represent cops and firefighters.

Thousands of such claims have been filed by participants in Los Angeles’ controversial Deferred Retirement Option Plan – or DROP, as it’s known – which allows veteran cops and firefighters to collect their salaries and pensions simultaneously for the last five years of their careers.

A Times investigation in February found that nearly half of the people who have joined the program since its inception in 2002 subsequently went out on injury leave – at nearly twice their normal pay – typically for bad backs, sore knees and other injuries that afflict aging bodies regardless of profession.

As an example, the Times reports that  former Los Angeles Fire Capt. John Kitchens was paid more than $1.5 million while in DROP – $645,000 of that in extra pension payments – despite missing more than a year and a half on injury and sick leave, city payroll records show.

Despite his health issues, Kitchens was able to travel to the Galapagos Islands in January 2013 to dive with hammerhead sharks, according to his Facebook page. In the comments beneath a photo of him in scuba gear on a boat at Gordon Rocks – a bucket-list destination for many divers – his only complaint was that the photos he took of the massive sharks underwater turned out blurry.

There’s nothing unusual about what he did, Hall said, and he knows many other officers who have engaged in more strenuous physical activity while out with injuries.

He’s willing to speak out about the workers’ compensation abuse because he has nothing left to lose, Hall said. Other cops and firefighters who have been through the system won’t talk, he said, because doing so would “screw over a lot of their friends. It’s corrupt, and a lot of people do it.”