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Tag: 2018 News

Injured Workers Have High Odds of Opioid Addiction

A new study, Factors Associated With Persistent Opioid Use Among Injured Workers’ Compensation Claimants, published online in the journal JAMA Network Open. says that many injured workers turn to opioid painkillers for relief, and nearly 30 percent may still be taking them three months after their injury — increasing the odds of addiction.

The number of opioid prescriptions per workers’ compensation claim in the United States has climbed considerably since 2003, according to the NCCI Workers’ Compensation Prescription Drug Study – 2013 Update. However, the researchers also noted that there “is a paucity of data on persistent opioid use and factors associated with persistent opioid use among workers’ compensation claimants.” Thus they decided to conduct this new study.

For the study, the researchers collected data on nearly 9,600 injured workers who filed workers’ compensation claims in Maryland from 2008 to 2016. All patients were initially treated with opioids. The objective of this study was to determine the proportion of injured workers who filled an opioid prescription beyond 90 days from their time of injury and the factors associated with persistent opioid use among injured workers’ compensation claimants in Maryland.

The findings suggest workers’ compensation claimants have a high proportion of persistent opioid use.

2741 claimants (28.6%) with an initial opioid prescription filled at least 1 opioid prescription more than 90 days from the time of injury. Nearly 10% of the injured workers filled an opioid prescription beyond 365 days from their date of injury. Persistent opioid use was significantly associated with increased age, preinjury incomes of $60 000 or more, claims adjudicated as permanent total disability, and a concomitant diagnosis of chronic joint pain or another pain diagnosis such as migraines or fibromyalgia. Claimants with crush injuries and strain or sprain injuries were 50% more likely than those with soft-tissue or contusion injuries to have persistent opioid use.

Researchers concluded that “the proportion of injured workers with persistent opioid use substantially exceeds recent reports on surgical patients at 90 days (28.6% vs 6.0%) and the national rate at 1-year from initial therapy reported by the Centers for Disease Control and Prevention.”

“Many of our findings were consistent with previous research. Patients with a chronic joint pain diagnosis were more likely to be persistent opioid users.” The researchers also conceded that ” It is possible that some participants sought a chronic pain diagnosis to justify a continued disability claim.”

“The strong association between persistent opioid use and chronic pain diagnoses are concerning and may highlight a critical gap between national evidence-based guidelines and actual prescribing practices.

US News adds to the study by reporting that the main concern shared by doctors is the use of opioids for non-acute pain, said senior researcher Dr. Gerard Slobogean, an assistant professor of orthopedics at the University of Maryland School of Medicine. “Physical therapy, other complementary and alternative therapies, as well as non-opioid medical therapies, should be considered for many injured workers,” he said.

A Sense of Alarm as Rural Hospitals Keep Closing

Employers who implement an MPN, must provide access to care consistent with statutory and regulatory guidelines, including in a rural community. Hospitals are often thought of as the hubs of our health care system. But, according a report in the New York Times, hospital closings are rising, particularly in some communities.

Since 2010, nearly 90 rural hospitals have shut their doors. By one estimate, hundreds of other rural hospitals are at risk of doing so. In its June report to Congress, the Medicare Payment Advisory Commission found that of the 67 rural hospitals that closed since 2013, about one-third were more than 20 miles from the next closest hospital.

A study published last year in Health Affairs by researchers from the University of Minnesota found that over half of rural counties now lack obstetric services. Another study, published in Health Services Research, showed that such closures increase the distance pregnant women must travel for delivery.

And another published earlier this year in JAMA found that higher-risk, preterm births are more likely in counties without obstetric units. (Some hospitals close obstetric units without closing the entire hospital.)

Options are dwindling for many rural families, and remote communities are hardest hit,” said Katy Kozhimannil, an associate professor and health researcher at the University of Minnesota. Ms. Kozhimannil, a co-author of all three studies, said, “What’s left are maternity care deserts in some of the most vulnerable communities, putting pregnant women and their babies at risk.”

In July, after The New York Times wrote about the struggles of rural hospitals, some doctors responded by noting that rising malpractice premiums had made it, as one put it, “economically infeasible nowadays to practice obstetrics in rural areas.”

Many other types of specialists tend to cluster around hospitals. When a hospital leaves a community, so can many of those specialists. Care for mental health and substance use are among those most likely to be in short supply after rural hospital closures.

The closure of trauma centers has also accelerated since 2001, and disproportionately in rural areas, according to a study in Health Affairs. The resulting increased travel time for trauma cases heightens the risk of adverse outcomes, including death.

Another study found that greater travel time to hospitals is associated with higher mortality rates for coronary artery bypass graft patients.

In many communities, hospitals are among the largest employers. They also draw other businesses to an area, including those within health care and others that support it (like laundry and food services, or construction).

A study in Health Services Research found that when a community loses its only hospital, per capita income falls by about 4 percent, and the unemployment increases by 1.6 percentage points.

Not all closures are problematic. Some are in areas with sufficient hospital capacity. Moreover, in many cases hospitals that close offer relatively poorer quality care than nearby ones that remain open. This forces patients into higher-quality facilities and may offset negative effects associated with the additional distance they must travel.

Perhaps for these reasons, one study published in Health Affairs found no effect of hospital closures on mortality for Medicare patients. Because it focused on older patients, the study may have missed adverse effects on those younger than 65. Nevertheless, the study found that hospital closings were associated with reduced readmission rates, which is regarded as a sign of increased quality. So it seems consolidating services at larger hospitals can sometimes help, not harm, patients.

Another Drugmaker Settles KIckback Case

United States Attorney William M. McSwain announced today that pharmaceutical companies Abbott Laboratories and AbbVie Inc. will pay $25 million to resolve allegations that it employed kickbacks and unlawful methods of marketing and promotion to induce physicians to prescribe the drug TriCor®.

The settlement resolves allegations that, between 2006 and 2008, Abbott knowingly paid kickbacks to physicians in order to induce TriCor® prescriptions. Abbott, through its sales representatives, allegedly provided physicians with improper gift baskets, gift cards, and other items to induce prescriptions of TriCor®. Abbott also engaged health care providers for consulting services and speaking engagements, where one purpose of the remuneration for the programs was to induce or reward physicians for TriCor® prescriptions.

In addition to the kickback allegations, the settlement also resolves allegations that Abbott engaged in unlawful methods of off-label marketing and promotion relating to the sale of TriCor® for unapproved indications. The FDA-approved indications for TriCor® during this time period were for use, in conjunction with diet, to treat patients with hypertriglyceridemia, mixed dyslipidemia, or hypertriglyceridemia. However, Abbott marketed the drug off-label for: (1) use in treating, preventing, or reducing cardiovascular events and other cardiac health risk; (2) use in combination with statin drugs, and (3) use as a first-line treatment of diabetic patients, including treatment to prevent or reduce cardiac health risks in diabetic patients. These uses were not FDA-approved and were not covered by federal healthcare programs.

As a result of today’s $25 million settlement, the federal government will receive $23.2 million, and state Medicaid programs will receive $1.8 million.

This settlement resolves allegations in a lawsuit filed in the Eastern District of Pennsylvania by Amy Bergman, a former Abbott sales representative, under the qui tam, or whistleblower, provisions of the False Claims Act. The qui tam provisions permit private parties to sue for false claims on behalf of the government and to receive a share of any recovery. Ms. Bergman will receive $6.5 million as her share of the recovery in the case.

This case was a cooperative effort among the U.S. Attorney’s Office for the Eastern District of Pennsylvania, the Civil Division of the Department of Justice, the Office of the Inspector General of the Department of Health and Human Services, and the National Association of Medicaid Fraud Control Units. For the United States Attorney’s Office, Assistant United States Attorney Charlene Keller Fullmer and Auditor Dawn Wiggins handled the investigation and settlement.

The lawsuit is captioned United States ex rel. Amy Bergman, et al. v. Abbott Laboratories, Civil Action No. 2:09-cv-04264999 (E.D. Pa.). The claims resolved by the settlement are allegations only; there has been no determination of liability.

WCRI Says California Medical Costs Declining

Medical costs per claim and the components in 18 state workers’ compensation systems are analyzed in depth in a new series of studies, CompScope Medical Benchmarks, 19th Edition, released by the Workers Compensation Research Institute (WCRI).

“The studies are designed to help policymakers and others benchmark state system performance. The benchmarks also provide an excellent baseline for identifying important trends and for tracking changes over time in response to workers’ compensation reforms,” said Ramona Tanabe, WCRI’s executive vice president and counsel.

The 18 study states are Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Tennessee, Texas, Virginia, and Wisconsin. There are individual reports for every state except Arkansas and Iowa.

The following are sample findings for some of the study states:

California: The study shows a decrease in medical payments per claim, evaluated as of March 2017, as a result of the continuing impact of Senate Bill 863.

Massachusetts: Medical payments per claim were the lowest of the 18 study states; many costs have been decreasing going back several years.

North Carolina: Decreases in medical payments per claim were the steepest of all study states (6 percent per year since 2013), likely reflecting the impact of recent fee schedule changes.

Pennsylvania: Faster-than-typical growth in medical payments per claim was driven by faster growth in hospital outpatient payments per claim.

Texas: Medical payments per claim decreased from 2014 to 2016, following several years of increasing medical costs.

Wisconsin: In contrast to moderate to rapid growth in prior years, Wisconsin experienced little growth in medical payments per claim since 2014.

The Workers Compensation Research Institute (WCRI) is an independent, not-for-profit research organization based in Cambridge, MA. Organized in late 1983, the Institute does not take positions on the issues it researches. It provides information obtained through studies and data collection efforts, which conform to recognized scientific methods. Objectivity is further ensured through rigorous, unbiased peer review procedures.

WCRI’s diverse membership includes employers; insurers; governmental entities; managed care companies; health care providers; insurance regulators; state labor organizations; and state administrative agencies in the U.S., Canada, Australia, and New Zealand.

Drug Pricing to Follow “International Pricing Index”

President Trump proposed changes to a segment of Medicare drug pricing that the White House believes would save Americans $17.2 billion over five years and cut down on “global freeloading.”

The president plans to change the pricing model for Medicare Part B drugs administered in doctors’ offices to keep costs aligned with the lower prices similar countries pay for the same medicines. Total payment for such drugs could drop by 30 percent over time, the White House says.

“We will no longer accept the inflated prices charged to our seniors,” Trump said.

The new “international pricing index” for Medicare Part B would set a target price for physician-administered drugs at 126 percent of the average price other countries pay. It would include a larger add-on fee for doctors and hospitals that would be independent of the drug’s price.

That’s a change from the current system that sets pricing based on the average sales price only in the US, plus a price-based add-on fee. The new model would end the incentive for doctors to prescribe the most expensive drugs to obtain the higher fees.

The Medicare Part B model would be phased in over a five-year period and initially apply to 50 percent of the country, with the opportunity to scale up afterward.

Trump on Thursday railed against a “rigged” drug system that allows other countries to benefit at America’s expense, calling it “wrong and unfair.”

“We’re taking aim at the global freeloading that forces American consumers to subsidize lower prices in foreign countries through higher prices in our country,” Trump said.

Earlier Thursday, Health and Human Services Secretary Alex Azar tweeted out an HHS report that highlights the disparities that the Trump administration seeks to end.

The report compared prices for 27 different Medicare Part B drugs that are administered by physicians – not those dispensed by the pharmacies. The report found that prices charged to the US are 1.8 times higher on average than 16 other countries with similar economic conditions. The US was paying the highest price for 19 of the 27 drugs.

The pricing disparities meant that Medicare Part B and its beneficiaries spent an additional $8.1 billion (or 47 percent more) on the 27 common drugs than it would if the payments were determined by an international pricing index, Azar said.

The new pricing aims to tackle the smaller market of non-retail drugs. Pharmacy-dispensed drugs account for about 72 percent of total prescription drug spending in the United States.

Outcomes Not Tied to Hospital Accreditation

A group of researchers claim that hospital accreditation is not necessarily tied to better outcomes for U.S. patients.

Based on records for more than 4.2 million patients over age 65 covered by Medicare, the study team found no difference between accredited and unaccredited hospitals in patient death rates, and only a slightly lower rate of patient readmissions at accredited hospitals, according to the report published in The British Medical Journal.

To be reimbursed for care provided to Medicare patients, hospitals either need to be accredited by an independent organization approved by the Centers for Medicare and Medicaid Services, or they must have passed a review by a state survey agency.

To see if accredited hospitals offer better quality care, researchers analyzed data from 4,400 U.S. hospitals, including 3,337 accredited facilities and 1,063 that passed state-based review in 2014-2017. They linked this data with Medicare files and with results of government-sponsored patient satisfaction surveys for all the hospitals.

Overall, they found that patients treated at accredited hospitals had slightly lower 30-day mortality than those at hospitals reviewed by a state agency (10.2 percent versus 10.6 percent), although the difference was too small to rule out the possibility it was due to chance.

The research team also found identical mortality rates (2.4 percent) and nearly identical readmission rates (15.9 percent versus 15.6 percent) for six types of major surgery at accredited and state-reviewed hospitals.

For the medical conditions, readmissions were lower at accredited hospitals, at 22.4 percent versus 23.2 percent, a statistically meaningful difference.

Patient experience scores were slightly higher at state-survey hospitals than at accredited hospitals.

In addition, the research team found no differences in mortality, readmission rates or patient experience scores between the hospitals accredited by The Joint Commission, considered the “gold standard” for accreditation, or other independent organizations, the study team notes.

Future studies should look at what type of accreditation and by which organization seem most helpful for better patient outcomes. For instance, hospitals designated as stroke centers or rehabilitation centers may have better outcomes for particular medical conditions, said Laura Wagner of the University of California, San Francisco, who wasn’t involved in the study.

“The bottom line is that accreditation does matter, and it provides a framework for both patients and healthcare providers around quality,” One of the authors said. “It can improve quality in some cases, and we need to improve that framework to provide care.”

WCAB En Banc Provides Guidance on QME Process

Sandab Duon filed three claims for injury while employed as a machine operator by California Dairies. Robert Weber, M.D., acted as the internal medicine panel QME and evaluated applicant on August 3, 2015. Robindra Paul, M.D., was the psychiatric panel QME.

On April 19, 2016, the Hartford representative sent a letter to the internal QME Dr. Weber enclosing a copy of Dr. Paul’s March 16, 2016 report in response to Dr. Weber’s request to see the psychiatric report during his deposition. The letter lists applicant’s attorney, Mr. Bryan Leiser, as one of the copied parties, but only states his name, not his address. No proof of service of the letter is in evidence.

Dr. Weber issued a report dated August 31, 2016 reflecting his receipt and review of Dr. Paul’s report. However, Dr. Weber’s opinion remained “as expressed” in his previous report.

The matter ultimately proceeded to trial. One of the issues was whether Dr. Weber as the internal medicine QME has been tainted based upon the provision of Dr. Paul’s reporting to him during the period of time that this issue was being disputed, and if so, is it sufficient to entitle the applicant to a new internal medicine panel.

The WCJ found that The Hartford, provided medical information to the internal medicine panel qualified medical evaluator (QME) without first serving applicant and engaged in ex parte communication with the QME in violation of Labor Code sections 4062.3(b) and 4062.3(e). (Lab. Code, § 4062.3(b) & (e).) and ordered the parties to obtain a new QME panel in internal medicine or agree to an internal medicine agreed medical evaluator (AME).

A co-defendant, Insurance Company of the West petitioned for reconsideration.The WCAB issued an en banc decision in the case of Sandab Suon v California Dairies; Insurance Company of The West; The Hartford; Starr Indemnity and Liability Insurance Company, interpreting Labor Code section 4062.3.

Section 4062.3(b) requires that “information” proposed to be provided to the QME “shall be served on the opposing party 20 days before the information is provided to the evaluator.” Section 4062.3(e) separately requires that “communications with a [QME] before a medical evaluation” must be served on the opposing party “20 days in advance of the evaluation.”

However, section 4062.3(e) further provides that “[a]ny subsequent communication with the medical evaluator “shall be served on the opposing party when sent to the medical evaluator.” The preliminary question is whether the documents or materials sent to the QME are “information” or “communication” as those terms are used in the Labor Code.

Whether a party properly served a written communication with the QME to the opposing party is a question of fact the determination of which must be supported by substantial evidence. In this matter, the evidence in the record is unclear whether Mr. Paul’s letter to the QME Dr. Weber was properly served and received by Mr. Leiser, and the matter will be returned to the WCJ to further address that issue pursuant to the discussion herein. If a communication was not ex parte, the trier of fact must decide if the documents or materials sent to the QME nonetheless constitute “information” subject to section 4062.3(b).

As a general rule, the WCAB determined that the following rules apply to a QME evaluation.

(1) Disputes over what information to provide to the QME are to be presented to the WCAB if the parties cannot informally resolve the dispute. The “meet and confer” provisions in the Civil Discovery Act are useful
(2) Although section 4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, the opposing party must object to the provision of medical records to the QME within a reasonable time in order to preserve the objection.
(3) If the aggrieved party elects to terminate the evaluation and seek a new evaluation due to an ex parte communication, the aggrieved party must do so within a reasonable time following discovery of the prohibited communication.
(4) The trier of fact has wide discretion to determine the appropriate remedy for a violation of section 4062.3(b).
(5) Removal is the appropriate procedural avenue to challenge a decision regarding disputes over what information to provide to the QME and ex parte communication with the QME


DWC Publishes 2017 Audit Report

Pursuant to Labor Code section 129(e), the Administrative Director of the Division of Workers’ Compensation submitted its twenty-seventh annual workers’ compensation report summarizing the results of 2017 audits conducted by the DWC Audit and Enforcement Unit.

The Audit Unit annual report provides information on how claims administrators audited by the DWC performed and includes the Administrative Director’s ranking report for audits conducted in calendar year 2016.

The DWC Audit & Enforcement Unit completed 47 profile audit reviews (PARs), which were all routinely selected; there were 0 target audits, which would have been conducted based upon the failure of a prior audit. The PAR subjects consisted of 7 insurance companies, 14 self-administered/self-insured employers, 22 third-party administrators (TPA), and 4 insurance companies/third-party administrators’ combined claims-adjusting locations.

The performance of any insurer, self-insurer, or third-party administrator is rated for action in specific areas of benefit provision. Of foremost importance is the payment of all indemnities owed to an injured worker for an industrial injury. The timeliness of all initial and subsequent indemnity payments and compliance with the regulations of the Administrative Director for the provision of notice for a qualified or agreed medical evaluation are also measurable performance factors.

Forty-three audit subjects (91%) met or exceeded the PAR 2016 performance standard and therefore had no penalty citations assessed in accordance with LC section 129.5(c) and CCR, Title 8, section 10107.1(c)(4). However, these audit subjects were ordered to pay all unpaid compensation.
– Four audit subjects (9%) failed to meet or exceed the PAR standard, and their audits were expanded to a full compliance audit of indemnity claims (FCA stage
1) Two of these audit subjects (50% of those that failed to meet or exceed the PAR standard) met or exceeded the FCA 2016 performance standard and therefore had penalty citations assessed for unpaid and late payment of indemnities in accordance with LC section 129.5(c)(2) and CCR, Title 8, sections 10107.1(d).
2) The remaining two of the four audit subjects (50% of those that failed to meet or exceed the PAR standard) failed to meet or exceed the FCA 2016 performance standard and their audits expanded into full compliance audit of indemnity claims (FCA stage 2) and added a sample of denied claims to be audited. These audit subjects were assessed administrative penalties for all penalty citations in accordance with LC section 129.5(c) and CCR, Title 8, Section 10107.1(d) and 10107.1(e).

The audit regulations are currently being amended to address the statutory changes brought about by the adoption of Senate Bill (SB) 863. As of January 1, 2013, the amended Labor Code section 4650(b)(2) came into effect and now provides that, under specific circumstances set by statute, permanent disability (PD) indemnity will not be payable to an injured employee until it is awarded by the Workers’ Compensation Appeals Board.

FDA Approves Smartphone Urine Testing

Siemens Healthineers, the medical arm of the German engineering and technology conglomerate, has teamed up with Israeli start-up to allow patients to test their urine at home by using a smartphone camera that scans a dipstick and sends the results to their doctor.’s founder and CEO Yonatan Adiri was selected as one of the 50 most influential people in healthcare by TIME magazine.

The alliance is the latest partnership between medtech firms and technology companies aimed at helping patients monitor their own health, as well as lowering the costs of managing chronic diseases.

Urine testing is the world’s second-most frequently conducted diagnostic test. Regular testing is needed to monitor kidney function in patients with chronic kidney disease, as well as to detect potential signs of diabetes.

Last summer. the Food and Drug Administration granted Class 2 approval to’s, a urinalysis kit that includes an mHealth app and dipstick. Through a smartphone camera, the app’s AI software can detect 10 different healthcare conditions, including certain infections, pregnancy issues and chronic conditions, and instantly stores that data in the cloud for care providers.

Class II approval is granted to devices that have direct health implications and require a medium level of supervision. This is one of the first devices reportedly approved by the FDA that is designed for use with optical equipment designed by a third party.

Under the new global partnership will use urinalysis tests from Siemens Healthineers in dipkits that are sent to patients at home. Patients urinate on the dipstick and scan it using their smartphone camera, which uses computer vision and machine learning to ensure the results can be read. The results are then sent via an app to the patient’s medical record for a doctor to assess.

“This alliance expands our capabilities to improve patient experience by conducting testing in their home,” said Christoph Pedain from Siemens Healthineers’ Point of Care Diagnostics business.

Yonatan Adiri, founder and chief executive officer of said the technology was like a “medical selfie” that would improve patient outcomes through more frequent testing.

The mobile health platform is currently being tested at Pennsylvania’s Geisinger health system in a partnership with the National Kidney Foundation.

A number of technology companies including Apple, Samsung Electronics and Google are working on health-related applications for wearable devices and smartphones. Last month, Apple said its new watch can take an electrocardiogram and detect heart problems.

Orthopaedics company Zimmer Biomet is also testing a new app with Apple which would allow patients due to have hip or knee replacements to funnel basic health data from their Apple watches to their surgeons.

Exclusive Remedy No Protection for Uninsured Employer

Fiona Bulanadi filed a lawsuit against Permanente Medical Group, and several entities involved in the administration of her workers’ compensation claim, a claims adjuster, Sedgwick Claims Management Services, Inc., and Sedgwick’s employee, Fia Kyono.

She alleged that the Permanente Medical Group induced her to accept employment with the company and to remain employed there by repeatedly assuring her it would pay her workers’ compensation benefits, if and when it became necessary. Allegedly representatives of Permanente Medical Group assured Fiona, orally and “in paperwork that was provided to her,” that “if she was injured on the job that she could count on the prompt provision of worker[s’] compensation benefits.”

On February 7, 2014 a car hit Fiona while she was walking on a footpath at a Kaiser facility. Fiona was on the footpath because Permanente Medical Group required its employees to “take walks and engage in invigorating activities during lunches and breaks.”

Fiona filed a workers’ compensation claim. Permanente Medical Group gave the claim to Kaiser Foundation Health Plan, which in turn assigned it to Sedgwick. Sedgwick sent Fiona a letter allegedly falsely identifying Kaiser Foundation Health Plan as her employer, purporting to deny her workers’ compensation claim, but suggesting the claim was “still open.” According to Fiona, the defendants investigated her workers’ compensation claim in bad faith, looked for ways to avoid paying her benefits, and denied the claim for patently false reasons.

Fiona sued Permanente Medical Group for “damages for being willfully uninsured or not permissibly self-insured,” breach of her employment contract, and unfair business practices. She sued all of the defendants for fraud, negligent misrepresentation, and intentional infliction of emotional distress. She sued Sedgwick, Kyono, and Kaiser for interference with contract, and she sued Kaiser for premises liability negligence.

The court sustained defendants demurrer to all of the Bulanadis’ causes of action on the ground they were barred by the exclusive remedy provision of the Workers’ Compensation Act. The court of appeal reversed in the unpublished case of Bulandi v. Southern California Permanente Medical Group.

Fiona alleged Permanente Medical Group was willfully uninsured or not permissibly self-insured. If that allegation is true, her employer is not protected by workers’ compensation exclusivity, and Fiona may bring a civil action for damages for her work-related injuries. If that allegation is not true, at least some of Fiona’s causes of action may be barred by the Workers’ Compensation Act.

The trial court ruled on demurrer that Permanente Medical Group was self-insured by taking judicial notice of two documents: (1) a DIR certificate of consent to self-insure issued to Permanente Medical Group in 1965 and (2) a document in portable document format posted on the DIR website listing Permanente Medical Group, among others, as a self-insured employer. Because these documents did not indisputably establish Permanente Medical Group was self-insured, however, the trial court erred.