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Tag: 2019 News

LAPD Officer Charged with Comp Fraud

The Los Angeles County District Attorney’s Office announced that a Los Angeles Police Department officer has been charged with workers’ compensation fraud.

Mario Jacinto (dob 8/6/78) of Diamond Bar faces four counts of workers’ compensation insurance fraud and one count of attempted perjury under oath, all felonies, in case BA477808. Jacinto, described as an “Officer III,” is a 16-year veteran of the force and is assigned to Newton Area, Los Angeles Police Department officials said.

The case was filed for arrest warrant on May 15 and the defendant was arrested. Jacinto was released after posting $50,000 bail.

Jacinto is accused of misrepresenting the extent of his job-related injuries for which he was receiving disability benefits.From October 2018 through January,he allegedly engaged in activities that were inconsistent with his work-related claims, said Deputy District Attorney Arunas Sodonis of the Healthcare Fraud Division.

While under oath during a deposition, Jacinto claimed he had not participate in martial arts classes after being injured, but according to the complaint, those claims were false.

A complaint against officer Mario Jacinto, 40, said he “falsely claimed he had not participated in martial arts classes since the date of his injury,” said Paul Eakins, a spokesman for the Los Angeles County District Attorney’s Office, in an email to McClatchy.

Jacinto faces a possible maximum sentenceof eight years and eight months in state prison if convicted as charged. The prosecutor is requesting that bail be set at $40,000.The case remains under investigation by the LAPD, Special Operations Division.

Insurance Agent Allegedly Steals Premiums

Insurance agent Francis Okyere, 67, self-surrendered yesterday at the Los Angeles County Superior Court after being charged with four felony counts of grand theft.

The charges arose from an investigation by the Department of Insurance’s Investigation Division, Valencia Regional Office, into multiple complaints filed by clients of Okyere alleging that their insurance policies were canceled despite paying Okyere for the coverage.

The investigation revealed that, between July 2015 and September 2016, Okyere misappropriated at least $65,456 in insurance premiums payments from four small business owners and used those funds for his personal benefit.

Okyere’s actions left the business owners uninsured against potential liability and workers compensation claims.

Okyere will be arraigned on July 11, 2019 and bail was set at $30,000. The case is being prosecuted by the Healthcare Fraud Division of the Los Angeles County District Attorney’s Office.

The Department of Insurance Legal Division filed an Accusation against Okyere on December 18, 2018 and is seeking to revoke his insurance license. If anyone has information on this investigation, we urge them to call the department at 661-253-7500.

Jurisdiction Over Home Health Care Limited to UR/IMR

Maxine Wiggs was injured while working for Allied Signal Aerospace. Wiggs had six surgeries from 1998 through 2012. By the time of her surgery in 2012, Wiggs was on multiple opiod and narcotic medications for pain management. Wiggs had three more surgeries from 2014 through 2017.

A dispute arose over home health care services. The parties stipulated in 2012, that Irene Mefford was the agreed registered nurse to perform a home assessment for housekeeping services. Mefford was to prepare a report, which should be sent to Wiggs’ doctors for review and comment;

Mefford’s report, issued on February 11, 2013, recommended Wiggs be provided with housekeeping services two times a month (approximately four hours per visit) for the purposes of housecleaning duties for the duration of one year. The employer authorized home care for one year and also paid for retroactive home care in the amount of $5,507.

On March 7, 2014, Wiggs’s primary treating physician submitted an RFA for home care. Allied’s UR authorized home care on March 14, 2014. The authorization was for four hours twice a month for deep cleaning assistance.

As a result of Wiggs’s additional surgeries, on June 18, 2015, Wigg’s physician requested authorization for four hours of house cleaning every week. Allied’s UR denied authorization for increased house cleaning home care. Wiggs did not seek an IMR of the UR denial. The record includes multiple RFAs included within progress reports of Wiggs’s doctors for four hours of house cleaning per week. The most recent RFA for four hours of home health care per week was submitted on April 6, 2016.

Wiggs thereafter filed for an expedited hearing on the issue. Wiggs argued that Allied’s failure to submit the April 6, 2016 RFA for home health care to the UR process had the effect of entitling her to home care. Allied argued that the April 6, 2016 RFA was identical to an earlier denied RFA, which could not be asserted without any change in circumstance in Wiggs’s condition. Neither Wiggs nor Allied at this point raised an ongoing stipulation to utilize Mefford for any disputes arising out of home health care.

The WCJ ordered Allied to serve Mefford with Wiggs’s medical reports from March 10, 2012 through October 19, 2016. The WCJ ordered Mefford to prepare a supplemental report after review of the medical records, a home assessment, and interview with Wiggs. The report was to address whether as a result of her industrial injuries, Wiggs was in need of heavy home health care.

A majority of the appeals board affirmed the WCJ’s decision to develop the record and incorporated and adopted the WCJ’s opinion and report. However the court of appeal reversed in the unpublished case of Allied Signal Aerospace v. Workers’ Comp. Appeals Bd.

The court of appeal ruled that “the issue of home health care for Wiggs is an issue to be resolved in and by the UR process, not the WCJ or the appeals board. … the WCJ and appeals board do not have jurisdiction to address and resolve the issue of home health care for Wiggs.”

Opioid Crisis Spreads to Canada and Europe

The Organisation for European Economic Cooperation (OEEC) was established in 1948. Other countries joined in, starting with Japan in 1964. Today, 36 OECD member countries worldwide identify problems, discuss and analyse them, and promote policies to solve them.

The OECD has just reported that opioid use has reached crisis proportions not only in the United States but also in Canada and some European countries, as prescription opioid painkillers have become much more common.

“The United States is by no means alone in facing this crisis,” the Organization for Economic Cooperation and Development said in its report. The Paris-based policy forum said deaths linked to opioid use were also rising sharply in Sweden, Norway, Ireland, and England and Wales.

Ilicit opioids constitute a significant product of international illicit trade. Heroin is a semi-synthetic opiate synthesised from morphine and is the most prevalent illicit opioid worldwide. Approximately twice as potent as morphine, heroin has a high potential for problematic use. In recent years, fentanyl and fentanyl analogues have become much more prominent in the illicit drugs scene in many countries.

The majority of those who die in Europe are men, accounting for 3 out of 4 deaths. However, in the United States, opioid use has been rising among pregnant women, particularly among those on low incomes. Having a mental health disorder was also associated with a two-fold greater use of prescription opioids in the US.

An increase in prescription and over-prescription of opioids for pain management is among the factors driving the crisis. Governments should review industry regulations to ensure they protect people from harm as, since the late 1990s, manufacturers have consistently downplayed the problematic effect of opioids.

Doctors should improve their prescribing practices, for instance through evidence-based clinical guidelines and increased surveillance of opioid prescriptions. Governments can also regulate marketing and financial relationships with opioid manufacturers. Coverage for long-term medication-assisted therapy, such as methadone and buprenorphine, should be expanded.

Strengthening the integration of health and social services, such as unemployment and housing support, and criminal justice systems would help improve treatment for people with Opioid Use Disorder.

Findings in WCAB Psyche Case Binding in FEHA Claim

Interim Incorporated provides housing and related services to adults with mental health disabilities. Interim hired Tommie Fields, an African-American man, as a counselor in 1989. During his 22-year career with Interim, he was one of the few African-American male counselors or employees.

Fields brought a worker’s compensation claim for psychiatric injuries. At the hearing, Interim argued that its decision to terminate Fields’s employment was “a nondiscriminatory, good faith personnel action” under Labor Code section 3208.3, subdivision (h), and thus Fields was not entitled to any benefits for his injuries.

The WCJ rejected this argument and found that Interim’s termination of Fields’s employment “was not a good faith personnel action; had the termination been a good faith personnel action it would not have met the . . . threshold necessary to bar the injury claim.”

Interim filed a petition for reconsideration with the Worker’s Compensation Appeals Board (WCAB) in which it argued that there was insufficient evidence to support the order. Reconsideration was denied.

Fields also brought a wrongful termination civil action against Interim Incorporated based on allegations of racial discrimination, harassment, and retaliation pursuant to the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).

The jury found in favor of Interim on the FEHA and wrongful discharge causes of action. However, the jury found in favor of Fields on his intentional infliction of emotional distress cause of action and awarded him $2 million in damages. The trial court later granted Interim’s motion for judgment notwithstanding the verdict.

On appeal, Fields contends that the trial court erred when it concluded that Interim was not collaterally estopped from presenting evidence of its nondiscriminatory, good faith personnel action. The Court of Appeal agreed and reverse the judgment in the unpublished case of Fields v Interim Incorporated.

The doctrine of collateral estoppel bars relitigation of an issue that has been decided in a former proceeding, including a worker’s compensation proceeding.

An employer, who has failed to establish that the employee’s psychiatric injuries were substantially caused by its lawful, nondiscriminatory, good faith personnel action in a worker’s compensation proceeding, cannot establish that its adverse employment action was based upon legitimate, nondiscriminatory factors under FEHA. Thus, one of the issues in the WCAB proceeding was identical to the issue at trial, that is, whether Interim’s termination of Fields’s employment was lawful and nondiscriminatory.

Comp 83% Combined Ratio Lowest Since 1930s

NCCI’s Chief Actuary Kathy Antonello, FCAS, FSA, MAAA, delivered the company’s highly anticipated State of the Line Report, which provided the audience with a detailed description of 2018 industry results, market indicators, and trends.

The workers compensation Calendar Year 2018 combined ratio for private carriers was 83%. This is the fifth consecutive year that the workers compensation line of business has posted an underwriting gain. Total market net written premium volume increased to $48.6 billion in 2018.

The Calendar Year 2018 workers compensation combined ratio of 83 is the lowest on record since the 1930s. The industry’s favorable combined ratio results over the last several years has been primarily driven by notable improvement in the underlying loss ratios. Underwriting discipline appears to have contributed to these results in what seems to be a perpetual low interest rate environment, with low investment returns.

The combined ratio is typically expressed as a percentage. A ratio below 100 percent indicates that the company is making an underwriting profit, while a ratio above 100 percent means that it is paying out more money in claims that it is receiving from premiums.

On an accident-year basis, the industry-reported 2018 workers compensation combined ratio was 97%. NCCI expects this accident year’s combined ratio to develop favorably over time.

Other market indicators and trends highlighted in NCCI’s 2019 State of the Line Report included:

— NCCI estimates that as of Year-End 2018, the overall reserve position for private carriers is a $5 billion redundancy. A redundant workers compensation reserve position has not been observed in at least 25 years.
— On a preliminary basis, average lost-time claim frequency across NCCI states declined by 1% in 2018.
— In NCCI states, the preliminary 2018 average indemnity accident year claim severity increased by 3% relative to the corresponding 2017 value. Medical lost-time claim severity increased by 1%.
— The workers compensation Residual Market Pool premium volume was approximately $1 billion during 2018, representing a residual market share of about 7%.

USDOL Opposes ABC Employment Test

In a major positive development for gig economy businesses, the U.S. Department of Labor issued an opinion letter confirming that certain workers providing work for a virtual marketplace company are, indeed, independent contractors.

While this letter can only be used as an authoritative legal defense by the specific (unnamed) gig economy business that requested the letter, this publication still provides the federal government’s official interpretation on whether a certain business model or practice complies with the law.

The agency applied its longstanding and unchanged six-factor balancing test, derived from Supreme Court precedent, to determine whether the workers are economically independent (leading to a finding of contractor status) or economically dependent (leading to an employee finding) in the working relationship with the entity in question. The six factors are as follows:

1) The nature and degree of the potential employer’s control.
2) The permanency of the worker’s relationship with the potential employer.
3) The amount of the worker’s investment in facilities, equipment, or helpers.
4) The amount of skill, initiative, judgment, or foresight required for the worker’s services.
5) The worker’s opportunities for profit or loss.
6) The extent of integration of the worker’s services into the potential employer’s business.

In the announcement accompanying the publication of the letter, the USDOL confirmed that the opinion letter was an official, written opinion by the Department’s Wage and Hour Division on how the FLSA applies in the specific circumstances presented by the entity that requested the letter.

“An important role of the U.S. Department of Labor is to ensure that employers who want to do the right thing have clear compliance assistance,” said Keith Sonderling, Acting Administrator of the Department’s Wage and Hour Division. “Today, the U.S. Department of Labor offers further insight into the nexus of current labor law and innovations in the job market.”

California Jury Stunning $2B Cancer Verdict

A California jury has awarded a couple more than $2 billion in a verdict against Monsanto, a subsidiary of Bayer. This is the third recent court decision involving claims that the company’s Roundup weed killer caused cancer.

The jury in Alameda County, just east of San Francisco, ruled that the couple, Alva and Alberta Pilliod of Livermore, Calif., contracted non-Hodgkin’s lymphoma because of their use of the glyphosate-based herbicide. They were each awarded $1 billion in punitive damages and an additional $55 million in collective compensatory damages.

Many legal experts believe the damages will be drastically reduced on appeal.

The verdict represents the third such legal setback for the company in California since mid-2018. In March, a San Francisco jury awarded $80 million to a man who blamed his cancer on his extensive use of Roundup. In August 2018, another San Francisco jury awarded $289 million to a fourth plaintiff. On appeal a judge later slashed that payout to $78 million. Bayer is appealing each of these verdicts. The company insists there is no link between Roundup and non-Hodgkin’s lymphoma.

The outcome of these cases may be incentive for applicant attorneys to file workers’ compensation cases for agricultural workers who have been exposed to the product, and who have been diagnosed with cancer.

“Bayer is disappointed with the jury’s decision and will appeal the verdict in this case, which conflicts directly with the U.S. Environmental Protection Agency’s interim registration review decision released just last month, the consensus among leading health regulators worldwide that glyphosate-based products can be used safely and that glyphosate is not carcinogenic, and the 40 years of extensive scientific research on which their favorable conclusions are based,” the company said in a statement.

At least one environmental group praised the verdict.

Ken Cook, president of the Environmental Working Group, said: “The cloud hanging over Bayer will only grow bigger and darker, as more juries hear how Monsanto manipulated its own research, colluded with regulators and intimidated scientists to keep secret the cancer risks from glyphosate.”

Four years ago, a United Nations-sponsored scientific agency declared that Roundup probably causes cancer. As NPR’s Dan Charles reported, the finding from the International Agency for Research on Cancer caused Monsanto to launch a fierce campaign to discredit the IARC’s conclusions.

“Internal company emails, released as part of a lawsuit against the company, show how Monsanto recruited outside scientists to co-author reports defending the safety of glyphosate, sold under the brand name Roundup. Monsanto executive William Heydens proposed that the company ‘ghost-write’ one paper. In an email, Heydens wrote that ‘we would be keeping the cost down by us doing the writing and they would just edit & sign their names so to speak.’ Heydens wrote that this is how Monsanto had ‘handled’ an earlier paper on glyphosate’s safety.”

More than 13,000 other lawsuits have been filed against its subsidiary, Monsanto, the maker of Roundup.

After three jury verdicts in California, a trial is scheduled for August in St. Louis County in Missouri, the site of Monsanto’s former headquarters.

En Banc WCAB Defines “Catastrophic Injury”

Kris Wilson was employed as a firefighter by the Department of Forestry when he reported to a wildfire in Lompoc. He was assigned to the drainage area where he inhaled fumes and smoke from the fire as he was not wearing a breathing apparatus. Applicant performed this work for several hours until approximately 8:00 a.m. the next day.

The next day he went to Sierra Vista Hospital in San Luis Obispo and went through the emergency department, and was later taken to Kaiser, and then to the Antelope Valley Hospital where he was admitted to the ICU and remained hospitalized for two weeks. He developed ulcerations of the tongue, mouth and lips. He vomited with high fevers and developed a rash all over his entire body. He had renal failure, transaminitis with interstitial infiltrates and respiratory failure requiring intubation. He was ultimately extubated approximately two weeks after his admission to the hospital.

He returned to work a year later but was unable to keep pace with his coworkers and became concerned about his ability to work as a firefighter. He was taken off work by his PTP and last worked in July 2015.

Wilson claimed injury to his lungs, psyche, left eye, head, brain, heart and circulatory system. A psychiatric PQME said that Wilson “described feeling emotionally traumatized following his symptoms resulting from the fire and by his near death experience in the hospital following his injury. As reported above, he believes that he has a serious physical injury that may kill him, shorten his life or send him back to the hospital. He has a vivid memory of waking up while he was intubated at the hospital and this is re-experienced in a recurring nightmare approximately 2 to 3 times each week”.

The WCJ issued a Findings and Award which found that applicant is entitled to a permanent disability award of 66%. The permanent disability award excluded an impairment rating for applicant’s psychiatric injury pursuant to section 4660.1(c) finding that he had not suffered a catastrophic injury. Reconsideration was granted, and it was found that Wilson suffered a catastrophic injury and was entitled to the psychiatric component of his injury in the En Banc decision of Wilson v State of California, Cal-Fire.

Since the phrase “catastrophic injury” is ambiguous as used in section 4660.1(c)(2)(B), the WCAB considered extrinsic sources to “select the construction that comports most closely with the apparent intent of the Legislature.”  It concluded that the “Legislature did not intend to permit an increased impairment rating for a psychiatric injury only in cases where the employee suffers a specific impact to his or her earning capacity as a result of the injury.”

However, determination of whether an injury is catastrophic will be a fact-driven inquiry. These factors include, but are not limited to, the following, as relevant::

1. The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve from the effects of the injury.
2. The ultimate outcome when the employee’s physical injury is permanent and stationary.
3. The severity of the physical injury and its impact on the employee’s ability to perform activities of daily living (ADLs).
4. Whether the physical injury is closely analogous to one of the injuries specified in the statute: loss of a limb, paralysis, severe burn, or severe head injury.
5. If the physical injury is an incurable and progressive disease.

Not all of these factors may be relevant in every case and the employee need not prove all of these factors apply in order to prove a “catastrophic injury.” This list is also not exhaustive and the trier of fact may consider other relevant factors regarding the physical injury. In determining whether an injury is catastrophic, the trier of fact should be mindful of the legislative intent behind section 4660.1(c).

The evidence in this case “therefore supports that the intensive treatment and the lasting impact of the injury on applicant have resulted in a catastrophic injury.”

44 States Claim 20 Drugmakers Fixed Prices

44 states, led by Connecticut Attorney General William Tong, filed a 524 page lawsuit accusing Teva Pharmaceuticals USA Inc of orchestrating a sweeping scheme with 19 other drug companies to inflate drug prices – sometimes by more than 1,000% – and stifle competition for generic drugs, state prosecutors said on Saturday.  California was not listed as a plaintiff in this new case.

The lawsuit accuses the generic drug industry, which mainly sells medicines that are off patent and should be less expensive, of a long history of discreet agreements to ensure that companies that are supposedly competitors each get a “fair share.” The situation worsened in 2012, the complaint said.

“Apparently unsatisfied with the status quo of ‘fair share’ and the mere avoidance of price erosion, Teva and its co-conspirators embarked on one of the most egregious and damaging price-fixing conspiracies in the history of the United States,: the complaint said.

With Teva at the center of the conspiracy, the drug companies colluded to significantly raise prices on 86 medicines between July 2013 and January 2015, the complaint said.

The drugs included everything from tablets and capsules to creams and ointments to treat conditions including diabetes, high cholesterol, high blood pressure, cancer, epilepsy and more, they said. In some instances, the coordinated price increases were more than 1,000 percent, the lawsuit said.

The lawsuit also names 15 individuals as defendants who it said carried out the schemes on a day-to-day basis.

“The level of corporate greed alleged in this multistate lawsuit is heartless and unconscionable,” Nevada Governor Steve Sisolak said in a statement.

According to New Jersey Attorney General Gurbir Grewal, more than half of the corporate defendants are based in New Jersey, and five of the individual defendants live in the state.

The lawsuit seeks damages, civil penalties and actions by the court to restore competition to the generic drug market.

Generic drugs can save drug buyers and taxpayers tens of billions of dollars a year because they are a lower-priced alternative to brand-name drugs.

The lawsuit filed on Friday is parallel to an action brought in December 2016 by the attorneys general of 45 states and the District of Columbia. That case was later expanded to include more than a dozen drugmakers.