Tag: 2018 News

One of the many important workers’ compensation claims administration tasks is to place accurate reserves for future claims costs, especially in claims that will be open for the life of the claimant.

Life expectancy increased each year for several decades, giving rise to higher reserves for lifetime awards. That trend seems to have reversed.

The U.S. death rate rose last year, and 2017 likely will mark the third straight year of decline in American life expectancy, according to preliminary data published by the National Center for Health Statistics.

Provisional estimates are based on a snapshot of all the vital statistics data received and processed by NCHS as of a specified cutoff date. To adjust for the incompleteness of these data, individual records are weighted to independent provisional counts of all the deaths that occurred in each state by month.

In this release of Quarterly Provisional Estimates, NCHS presents provisional estimates of death rates for the fourth quarter of 2017. Reliable estimates for the most recent quarters may not be available for some causes of death. The estimates are based on all death records received and processed by NCHS as of April 15, 2018. Estimates are presented for 15 leading causes of death plus estimates for deaths attributed to drug overdose, falls for persons aged 65 and over, firearm-related deaths, human immunodeficiency virus (HIV) disease, and homicide.

Death rates rose for Alzheimer’s disease, diabetes, flu and pneumonia, and three other leading causes of death, according to numbers posted online.

Full-year data is not yet available for drug overdoses, suicides or firearm deaths. But partial-year statistics in those categories showed continuing increases.

Just as important, there was little change in the death rate from the nation’s No. 1 killer: heart disease. In the past, steady annual drops in heart disease death rates offset increases in other causes. But that offset is no longer happening, experts say.

For decades, life expectancy increased, rising a few months nearly every year. But 2016 was the second year in a row in U.S. life expectancy fell, a rare event that had occurred only twice before in the last century.

There was some good news.The death rate for cancer, the nation’s No. 2 killer, continued to drop. It fell 2 percent from 2016. Death rates from HIV and blood infections also declined. The heart disease death rate fell too, but only by 0.3 percent. Experts think the nation’s increasing obesity rate is probably a factor in the flattening of heart disease death rates.

A more complete report is expected around the end of the year.

Bhupinder Kalkat hired JKD Construction as the framing contractor for the construction of his large house in Live Oak California. The contract provided that JKD was responsible for compliance with all Cal-OSHA requirements for safety and fall protection. The contract also required JKD to carry current workers’ compensation and liability insurance.

Amador Gudino was an employee of JKD and worked on the framing of Kalkat’s house. On October 18, 2012, he fell to death while working on a second story balcony. A Cal-OSHA investigation determined the framing work was conducted without adequate fall protection. Cal-OSHA found several violations, most relating to the absence of fall protection.

Gudino’s survivors and heirs, his wife and three children, received workers’ compensation benefits. The heirs alleged entitlement to increased benefits due to JKD’s serious and willful misconduct. The matter was resolved by a compromise and release.

The heirs brought suit against Kalkat and others. The complaint alleged negligent exercise of retained control, negligent provision of required safeguards and precautions, negligent provision of unsafe equipment, negligent selection of contractor, and breach of a non-delegable duty.

Kalkat moved for summary judgment, contending workers’ compensation was the heirs’ exclusive remedy. Kalkat argued that under Privette v. Superior Court (1993) 5 Cal.4th 689 he had no liability as the hirer of an independent contractor.

The heirs argued that under McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 (McKown) a hirer of an independent contractor was liable for furnishing unsafe or defective equipment and that was what happened here. Further, Kalkat knew there were inadequate fall protections but failed to provide adequate alternatives. He provided a forklift that he knew had defective brakes. The heirs argued this evidence supported the inference that Kalkat’s actions were unreasonable and negligent.

The trial court granted the motion for summary judgment, finding no evidence the forklift contributed to the accident. The court entered judgment for Kalkat. The judgment was affirmed in the unpublished case of Gudino v. Kalkat.

On appeal, the heirs contend Privette does not control because Kalkat furnished unsafe equipment–a forklift with defective brakes–that affirmatively contributed to Gudino’s death. They further contend there is a triable issue of fact as to whether Kalkat retained control over safety conditions at the job site and negligently exercised that control.

After a review of the law and evidence, the Court of Appeal ruled that the heirs failed to raise a triable issue of fact to bring this case within an exception to the limits on liability explained by Privette.

In an important 5-4 decision, the U.S. Supreme Court held, for the first time, that class or collective action waivers, particularly in wage/hour cases, and contained in arbitration agreements between employers and employees are valid and enforceable. Companies can use arbitration clauses in employment contracts to prohibit workers from banding together to take legal action over workplace issues. The vote was 5 to 4, with the court’s more conservative justices in the majority.

The court’s decision in Epic Systems Corp v Lewis could affect some 25 million employment contracts.

In each of these cases, an employer and employee entered into a contract providing for individualized arbitration proceedings to resolve employment disputes between the parties.

Each employee nonetheless sought to litigate Fair Labor Standards Act and related state law claims through class or collective actions in federal court. Although the Federal Arbitration Act generally requires courts to enforce arbitration agreements as written, the employees argued that its “saving clause” removes this obligation if an arbitration agreement violates some other federal law and that, by requiring individualized proceedings. They claim the agreements in these cases violated the National Labor Relations Act.

The employers countered that the Arbitration Act protects agreements requiring arbitration from judicial interference and that neither the saving clause nor the NLRA demands a different conclusion.

Until recently, courts as well as the National Labor Relations Board’s general counsel agreed that such arbitration agreements are enforceable. In 2012, however, the Board ruled that the NLRA effectively nullifies the Arbitration Act in cases like these, and since then other courts have either agreed with or deferred to the Board’s position.

The U.S. Supreme Court sided with the employers. “Congress has instructed in the Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Arbitration Act’s saving clause nor the NLRA suggests otherwise.”

Writing for the majority, Justice Neil M. Gorsuch said the court’s conclusion was dictated by a federal law favoring arbitration and the court’s precedents. If workers were allowed to band together to press their claims, he wrote, “the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace.”

Justice Ruth Bader Ginsburg read her dissent from the bench, a sign of profound disagreement. In her written dissent, she called the majority opinion “egregiously wrong.” In her oral statement, she said the upshot of the decision “will be huge under-enforcement of federal and state statutes designed to advance the well being of vulnerable workers.”

Because wage and hour class and collective actions are quite costly for employers to defend against, this decision should cause employers in Connecticut (and nationwide) to re-evaluate their employment relationships with employees and consider enacting wide-ranging arbitration agreements that include class-action and collective action waivers.

A Riverside chiropractor was charged by the Riverside County DA’s Office with 47 felony counts related to an insurance fraud and kickback scheme.

Curtis Wayne Montgomery, DOB: 6-1-58, of Riverside, has been charged with three counts of insurance fraud, 28 counts of receiving commission for referring clients, and 16 counts of money laundering.The charged crimes are alleged to have happened from 2011 through 2016.

Montgomery was arrested on May 11, 2018. He posted bail and was released from custody that same day. When he was released on bail, Montgomery was given a court date for arraignment of July 16, 2018.

In March of this year, Riverside County DA’s investigators learned that more than $300,000 in payments had been made from Montgomery to a company called Providence Scheduling, which was designed to field phone calls from injured workers and then funnel those people to doctors and chiropractors throughout California.

The two men who owned and operated Providence Scheduling, Carlos Arguello and Fermin Iglesias, have already entered guilty pleas to federal charges. Arguello and Iglesias required medical providers refer a certain number of patients to outside companies for medical equipment, imaging, and other treatments.

However, the two men owned these outside companies and therefore were able to bill insurance companies for services. If doctors and chiropractors failed to refer enough patients to these outside companies, the two men would stop or slow the number of patients they would refer to the medical providers which then could incentivize the providers financially to refer patients for unnecessary or ineffective treatments.

The case against Montgomery is the result of Operation Backlash, an extensive FBI-led undercover investigation that revealed a widespread workers’ compensation kickback scheme, including attorneys, doctors and medical providers who referred patients for health services in exchange for money. The Operation was first announced in November 2015 when the initial round of federal indictments was handed down.

San Diego chiropractor Steven J. Rigler and San Diego workers’ compensation attorney Sean O’Keefe previously pleaded guilty to federal charges.

Las year, the U.S. Attorney’s Office announced federal indictments against patient recruiters, Fermin Iglesias, Carlos Arguello, Miguel Morales and four corporations. The corporations are Providence Scheduling, Inc., Medex Solutions, Inc., Prime Holdings International, Inc. and Meridian Medical Resources, Inc., doing business as Meridian Rehab Care.

The three federal defendants were accused of recruiting individuals to file workers’ compensation claims resulting from an on-the-job injury. The defendants then directed these patients to specific chiropractors who, in exchange for dozens of new workers’ compensation patients each month, agreed to meet a quota set by the defendants for referrals of the new patients for ancillary goods and services such as MRIs and durable medical equipment from specific providers.

According to the indictment, Providence Scheduling oversaw the scheduling of applicants recruited by defendant Arguello and others, and their assignment to a primary treating physician, which included chiropractors. Defendants Iglesias and Arguello decided which physicians were eligible to receive applicants from defendant Providence Scheduling.

Prosecutors claim the purpose of the conspiracy was to fraudulently obtain money from insurers by submitting claims for ancillary procedures and DME that were secured through a pattern of bribes and kickbacks in the form of an illegal cross-referral scheme in exchange for the referral of patients to particular providers of ancillary procedures.

Near the end of March, 2017, Providence Scheduling entered into a Plea Agreement to plead guilty.

The U.S. Food and Drug Administration approved Lucemyra for the mitigation of withdrawal symptoms to facilitate abrupt discontinuation of opioids in adults.

While Lucemyra may lessen the severity of withdrawal symptoms, it may not completely prevent them and is only approved for treatment for up to 14 days. Lucemyra is not a treatment for opioid use disorder (OUD), but can be used as part of a broader, long-term treatment plan for managing OUD.

Opioid withdrawal includes symptoms – such as anxiety, agitation, sleep problems, muscle aches, runny nose, sweating, nausea, vomiting, diarrhea and drug craving – that occur after stopping or reducing the use of opioids in anyone with physical dependence on opioids.

In patients using opioid analgesics appropriately as prescribed, opioid withdrawal is typically managed by slow taper of the medication, which is intended to avoid or lessen the effects of withdrawal while allowing the body to adapt to not having the opioid.

In patients with OUD, withdrawal is typically managed by substitution of another opioid medicine, followed by gradual reduction or transition to maintenance therapy with FDA-approved medication-assisted treatment drugs such as methadone, buprenorphine or naltrexone; or by various medications aimed at specific symptoms, such as over-the-counter remedies for upset stomach or aches and pains.

“Today’s approval represents the first FDA-approved non-opioid treatment for the management of opioid withdrawal symptoms and provides a new option that allows providers to work with patients to select the treatment best suited to an individual’s needs,” said Sharon Hertz, M.D., director of the Division of Anesthesia, Analgesia and Addiction Products in the FDA’s Center for Drug Evaluation and Research.

The safety and efficacy of Lucemyra was supported by two randomized, double-blind, placebo-controlled clinical trials of 866 adults meeting Diagnostic and Statistical Manual-IV criteria for opioid dependence who were physically dependent on opioids and undergoing abrupt opioid discontinuation.

The FDA is requiring 15 postmarketing studies, including both animal and human studies. Additional animal safety studies will be required to support longer-term use (such as during a gradual opioid taper in pain patients discontinuing opioid analgesics) and use in children.

The FDA granted this application Priority Review and Fast Track designations, and an independent FDA advisory committee supported the approval of Lucemyra at a meeting held March.