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Tag: 2020 News

Blood Type Research May Support COVID-19 Apportionment

With the likelihood of workers’ compensation COVID-19 claims on the horizon, and with presumptions supporting them, opportunities for apportionment of permanent disability may be more important than ever in claims management.

Researchers who just published a new study, report that a person’s blood type may affect their risk for COVID-19, the disease caused by the new corona virus.

The findings appear on the website medRxiv, where health researchers publish studies before they undergo the peer review process required by journals.

Researchers used observational healthcare data on 1559 individuals tested for SARS-CoV-2 (682 COV+) with known blood type in the New York Presbyterian (NYP) hospital system to assess the association between ABO+Rh blood type and SARS-CoV-2 infection status, intubation, and death.

They found a higher proportion of blood group A and a lower proportion of blood group O among COV+ patients compared to COV-, though in both cases the result is significant only in Rh positive blood types.

The effect of blood type is not explained by risk factors they considered (age, sex, hypertension, diabetes mellitus, overweight status, and chronic cardiovascular and lung disorders).

In a meta-analysis of NYP data with previously-reported data from China, they found enrichment for A and B and depletion of O blood groups among COVID-19 patients compared to the general population. They also found new evidence of associations between B, AB, and Rh blood groups and COVID-19 and further evidence of recently-discovered associations between A and O blood groups and COVID-19.

The China study was limited because of its small size and it didn’t offer an explanation for its findings, Gao Yingdai, a researcher from the State Key Laboratory of Experimental Hematology in Tianjin, told the South China Morning Post.

The finding that blood type may affect COVID-19 risk could be important for healthcare workers treating COVID-19 patients, because those with A blood types” “might need particularly strengthened personal protection to reduce the chance of infection.”

Also, people with A blood types might require “more vigilant surveillance and aggressive treatment,” and identifying a person’s blood type as a routine part of treating COVID-19 and other coronavirus infections might be helpful, according to the researchers, Newsweek reported.

Court Jurisdiction in Subrogation Action Ends When Case Dismissed

Daniel Brodie Howard suffered major injuries in an automobile accident while acting within the scope of his employment with Agra Tech, Inc. Hartford was Agra Tech, Inc.’s workers’ compensation carrier. He was hospitalized and in a coma. Thus the probate court appointed his brother, David Howard as conservator of his person and estate.

A civil tort action was filed against multiple parties to recover for the injuries. Hartford filed a complaint in intervention seeking to recover the workers’ compensation benefits it had paid as a result of conservatee’s accident.

In 2012, a WCJ found conservatee to be totally and permanently disabled and awarded permanent disability, medical care for life, and attorney fees.

On October 30, 2013, conservatee, Hartford, and Toyota, one of the tort defendants, signed a mediation agreement that called for Toyota to pay a specified sum to conservatee. In 2014, the probate court signed an order approving the compromise of the disputed claim against the other driver and Toyota and directed payments from the settlement proceeds for attorney fees and expenses, to Hartford (for medical and like expenses it had paid), and conservatee (for the balance of the settlement).

Numerous disputes arose between the parties over the distribution of funds, each of which were subsequently resolved.

Then, in 2016, conservatee filed a motion in the probate court to assess attorney fees, asking the probate court to order Hartford to “reimburse Conservatee $150,934.76 in costs and $179,605.48 in attorney’s fees as Hartford’s pro rata share of Conservatee’s costs and attorney’s fees in creating the Toyota settlement.” Conservatee stated the authority for the motion was labor code sections 3856, subdivision (b), and 3860, subdivision (e), and the “common fund” doctrine.

The probate court concluded that it lacked jurisdiction to consider conservatee’s claims because the underlying civil case had been dismissed with prejudice upon conservatee’s request. The court of appeal agreed and affirmed the order in the unpublished case of Conservatorship of Howard.

Conservatee’s motion to assess attorney fees did not revive the civil action or overcome the effect of the voluntary dismissal of that action. Upon dismissal of the civil action, the probate court no longer had jurisdiction to enter any further order distributing the settlement proceeds from the civil action.

Smartphones Cause Uptick in Motor Vehicle Accident Comp Claims

Workers’ Compensation has experienced a long-term decline in overall claim frequency. However, for motor vehicle claims, the story is quite different.

The National Council on Compensation Insurance (NCCI), just published an update to it’s 2018 research brief titled “Motor Vehicle Accidents in Workers Compensation,” which examined the frequency and severity of motor vehicle accidents (MVA) from 2000 to 2016.

The brief noted that frequency decreased for both MVAs and all claims from 2000 to 2011. However, a key finding was that from 2011 to 2016, while the frequency of all workers compensation claims continued to decrease, the frequency of MVAs increased in both WC and in the general population. It cited the rapid expansion of smartphone ownership during this period as a possible contributing factor. Some key findings of the new update show:

MVA frequency increased. From 2011 to 2018, the frequency of MVA lost-time claims increased, while the frequency of all lost-time claims decreased. Our previous research showed that the same was true for the period 2011 to 2016.
— Smartphone ownership over 80%. Smartphone ownership skyrocketed after the introduction of the iPhone in 2007, but growth has tapered off in recent years. As of year-end 2018, the percentage of US adults who own a smartphone is estimated to be over 80%.
— Safety evolves. State-of-the-art vehicle safety features, such as automatic emergency braking, will take time to penetrate the driving pool, as the average car age is just under 12 years.
— MVA claim severity. MVA lost-time claims continue to cost over 80% more than the average lost-time claim, because MVA claims tend to involve severe injuries (e.g., head, neck, and spine).

There is a notable disparity in smartphone ownership between younger and older drivers. Nearly all drivers under age 30, but only half of drivers over age 65, own a smartphone. This suggests that smartphone ownership among employed drivers may creep further upward as younger individuals enter the workforce and older workers retire.

However, since the vast majority of drivers now own smartphones, we may not see the same MVA frequency increases that occurred during the period when smartphone ownership was significantly increasing.

Greater use of cell phone blocking technology would also be expected to make driving safer, if enabled by the driver. This technology, available through smartphone apps, prohibits calls or texts while the vehicle is in motion. Alternatively, Bluetooth technology allows for hands-free communication while driving.

Several factors that may put downward pressure on MVA claim frequency include (i) stricter state cell phone laws, and (ii) vehicle safety improvements.

The source of data for this study is Statistical Plan data for NCCI states. This database contains detailed policy information, which allows an analysis of frequency and severity by various claim characteristics.

Privette Doctrine Tested Again in Roofer Fall Claim

Yosemite Community College District hired contractors to complete a remodeling project at the campus that included roof repair and replacement on several buildings. Kitchell CEM was the general contractor or program manager for the project. This included developing and implementing a program-wide safety program. Western Single Ply-Nevada was the roofing subcontractor. The plaintiff Ramon Mora was its employee.

In 2015 a 2×4, without the typical accompanying 2×6, was anchored to the edge of the roof to use as scaffolding. While Mora was on the 2×4 anchor board without a safety harness, the board gave way and he fell over 20 feet off the unprotected roof edge.

Mora filed a civil action that alleged General Contractor owed him a duty of care and breached that duty by failing to develop and implement a safety program that included fall prevention and protection measures.

The trial court sustained the General Contractor’s demurrer. The order stated (1) workers’ compensation was “the sole and exclusive remedy for employees who sustain injuries while performing work in the scope of their employment”; (2) General Contractor “did not have the requisite degree of control over the property to support a claim for Premises Liability”; and (3) the negligence allegations were insufficient to state a cause of action against General Contractor. The Court of Appeal reversed in the unpublished case of Mora v Kitchell CEM.

The Privette doctrine will bar causes of action by an independent contractor’s employee against a non-negligent hirer that did not affirmatively act. A hirer can be a landowner, general contractor, or any other entity that hires an independent contractor.

Plaintiff’s complaint alleges that Roofing Subcontractor “was a subcontractor hired to perform reroofing work at the SUBJECT PREMISES.” The complaint does not state who hired Roofing Subcontractor “to perform reroofing work.” Thus, on the face of the complaint, the hirer of Roofing Subcontractor is not clearly and affirmatively shown. Consequently, at the pleading stage, the Privette doctrine cannot be a bar to the complaint because the hirer is not identified.

It is worthy of note that this opinion will likely be of limited value to this plaintiff. The identical issues will be tested again after a motion for summary judgment. Such a motion can included undisputed facts that establish the defendant as the General Contractor, and thus protected by Privette. This appeal is the result of Mora’s sixth amended complaint, and Mora has undoubtedly had difficulty establishing his case thus far.

Beverly Hills Doctor Arrested for $52M Insurance Fraud

A Beverly Hills anesthesiologist and his girlfriend, the owner of a Los Alamitos-based laboratory, are behind bars on charges of stealing about $52 million in an alleged insurance fraud scheme.

Dr. Randy Rosen, who was involved in a civil federal lawsuit involving a health care fraud scheme at a Long Beach hospital that was settled in 2017, was being held on $52 million bail along with co-defendant Liza Vismanos, who are both scheduled to be arraigned when a judge will also consider lowering their bail.

Vismanos owns the Wellness Wave surgical center in Beverly Hills and the Lotus Labs medical laboratory in Los Alamitos, according to the bail motion.

“In approximately June 2017, Rosen/Vismanos entered into a fraud scheme specifically targeting patients from addiction recovery rehabs to bill their private medical insurance carriers primarily for two types of procedures; a non-FDA approved Naltrexone implant and Cortisone injections,” according to the bail motion.

Rosen put his patients under anesthesia for these procedures in order to bill insurance for a major medical surgery at an approximate cost of $80,000 per procedure,” according to the bail motion.

“Per Rosen’s records he performed these procedures in as little as one-minute increments with as many as 72 procedures per day. Additionally, Rosen collected blood and urine from his patients, which was processed at Lotus Labs at a cost of approximately $4,000 per day after the procedure with no known medical necessity.”

Investigators allege 18 insurance companies were billed from June 2017 to May 2019 $661,940,464 and the two received $51,060,523.

The two are also accused of using two “body-broker” groups that would “sell Rosen patients in exchange for a kickback of the insurance proceeds,” the bail motion alleges.

The “marketers” would – often pay the patients (oftentimes $500 to $2,000 per procedure) to incentivize them into returning to Rosen for multiple procedures,” the bail motion alleges.

Investigators also allege “at least 35 of Rosen’s patients involved in this scheme have passed away, many by overdose,” according to the bail motion.

Investigators also said the alleged scheme was the subject of a CBS report in July 2018 that “focused on the death of a patient,” but “despite this attention Rosen/Vismanos continued with their fraud scheme, continued paying kickbacks and patients continued to die.”

Telemedicine in Workers’ Comp – New Normal or Fraud Opportunity?

Telemedicine has grown more popular over the past few months as physicians utilized new methods to connect with and diagnose their patients in the wake of the COVID-19 shutdowns. However, even before these changes became necessary, a report by Property Casualty 360 says that many employers and medical offices found that virtual appointments delivered another alternative to providing care for some patients.

“When an injured employee suffers a serious or complex injury, nurses can be a valuable resource to promote recovery and return to work,” says Jennifer Cogbill, vice president, GBCARE at Gallagher Bassett.

There are a wide range of medical services that can be provided remotely from kiosks in airports and pharmacies that allow individuals to check their pulse, blood pressure, temperature and other vitals to triaging care through telehealth visits. In these cases, nurses usually serve as the gatekeepers who determine what level of care is required for a patient, from a bandage to something more serious.

Dave Lupinsky, vice president of medical review services at CorVel Corporation, which provides health care management services for employers, third-party administrators, insurers and government entities, finds that care management starts by assessing which level of care is required: self-care that patients can provide to themselves with guidance from a nurse or other service provider, telecare provided remotely or care in a traditional brick and mortar location such as an emergency room or occupational clinic for more serious situations.

For most patients, the visits are conducted either over a desktop computer or some sort of mobile device (e.g., cell phone or tablet).

Despite the convenience tele-visits provide, some very real limitations must be considered. Some patients may not be technology savvy and have trouble accessing the patient portal or getting their computer to operate correctly (i.e., turning on the camera or microphone). Telemedicine also is not applicable for all injury and treatment types due to the limitations with the exam and other services needed.

As telemedicine moves from a niche service to more mainstream use, the value in terms of insurance and workers’ compensation claims will grow exponentially. James Quiggle, senior director of communications for the Coalition Against Insurance Fraud, anticipates that a new surge of tele-scams could well become America’s next large surge of medical fraud.

Workers’ comp, auto and health insurers could find themselves confronting surges of false telemedicine claims. Insurers in each line have a unique vulnerability due to the large volume of medical claims,” he asserts. “

Scams focus on exams, tests and treatments that don’t require physical contact ” often abusing telemed codes. Many scams will be familiar, only using telemed as the fraud delivery vehicle. Providers might do dozens of perfunctory, two-minute, tele-consults to see if a patient is injured and needs physical therapy. Doctors bill insurers for one-hour sessions and receive kickbacks for referring patients to the physical therapist.”

Large crime rings will profit mightily from telemedicine. Telemarketing firms can hire phone boiler rooms to tele-recruit hundreds of bogus patients. The patients are referred to colluding providers for bogus tele-consults and treatment,” he says, outlining how the fraud process will develop.

While not a panacea, telemedicine does provide another tool for medical professionals to connect with patients, particularly in a time when social distancing seems prudent. However, like every aspect of new technology, it needs to be implemented wisely.

Tort Claim Rejected for SCIF Refusal to Pay WCAB Order

Misael Mendoza-Hernandez suffered a “non-catastrophic” injury in 2007 while working for his employer, Colosseum Athletics. State Fund was Colosseum’s workers’ compensation insurer.

In November 2008, a physician designated by State Fund injured Mendoza-Hernandez’s spine while giving him an epidural, rendering Mendoza-Hernandez “effectively quadriplegic.” As a result, he needs catheterization every four to six hours. He cannot use his hands to do this, so he needs skilled nursing care for the catheterization. He also needs rectal suppositories to be able to defecate and must rely on another person to insert the suppositories.

Mendoza-Hernandez and State Fund entered into a written stipulation that State Fund would pay for home health care for eight hours per day, seven days per week, “until such time” as the parties’ agreed medical examiner reviewed certain documents and issued a supplemental report on Mendoza-Hernandez’s home health care needs. State Fund was to “then abide by those recommendations.” State Fund was also to “restart rehab gym payments and authorizations until an AME report to [the] contrary.”

The AME his report, which recommended 24 hour home health care. State Fund did not abide by the AME recommendation, and did not pay for 24 hour home care or for the rehabilitative gym membership. Mendoza-Hernandez to engage in further litigation before the WCAB to enforce the order.

In 2014, the parties stipulated to 100 percent disability. The parties subsequently agreed on the amounts of attorney fees, penalties, and sanctions that State Fund should pay for its refusal to pay the prior order.

Mendoza-Hernandez’s filed a civil action against State Fund for a single cause of action for intentional infliction of emotional distress. State Fund demurred to the Complaint. The trial court sustained the demurrer without leave to amend. The Court of appeal affirmed the dismissal in the unpublished case of Misael Mendoza-Hernandez v State Compensation Insurance Fund.

In Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616 (Unruh), our Supreme Court created an exception to exclusive jurisdiction “where an employer’s insurance carrier intentionally commits outrageous and extreme conduct totally unnecessary to and far beyond the bounds of normal investigation and defense of a worker’s claim.

The trial court concluded that this exception did not apply to the facts that Mendoza-Hernandez alleged. The court cited Everfield v. State Compensation Insurance Fund (1981) 115 Cal.App.3d 15 (Everfield) for the proposition that an insurer’s “mere denial of payment, even if intentional, is still within the jurisdictional purview of the workers’ compensation scheme.”

The Court of Appeal agreed with this reasoning, adding “California courts have invariably barred statutory and tort claims alleging that an insurer unreasonably avoided or delayed payment of benefits even though the insurer committed fraud and other misdeeds in the course of doing so.”

California Workers’ Compensation – Where Did $16.1B Go?

The Workers’ Compensation Insurance Rating Bureau has prepared its annual report containing estimated California workers’ compensation costs for 2019. The report in general terms explains how much money came into the system in premiums, and then discusses how it was spent. The report does not include self-insured costs and expenses.

Insurer Losses, Expenses and Profits – Calendar year 2019 earned premium totaled $16.1 billion (as compared to the $17.4 billion of premium earned in 2018). Total insurer paid losses in 2019 were $8.3 billion, or 51% of calendar year earned premium. California insurers incurred $5.4 billion in expenses in 2019, or 34% of 2019 earned premium. (For comparison purposes, in 2018, total incurred expenses were 34% of earned premium).

So how was the remaining 66% of the earned premium spent?

Physician and Medical-Legal Costs – In 2019, $4.6 billion, or 55% of total loss payments, were for medical services.

Indemnity Benefits – In 2019, $3.8 billion, or 45% of total loss payments, were for indemnity benefits (including vocational rehabilitation benefits).

Vocational Rehabilitation Benefits – About $73 million in vocational rehabilitation-related benefits were paid in calendar year 2019. This was 1.9% of all indemnity payments in 2019, of which 97% was for non-transferable education vouchers. (For comparison purposes, in 2018, vocational rehabilitation benefits paid was $87 million or 2.3% of all indemnity payments, of which 97% was for non-transferable education vouchers).

In total, incurred losses and expenses in calendar year 2019 were $13.2 billion, or 82% of earned premium. Based on insurer statutory Annual Statement information, the WCIRB estimates policyholder dividends incurred in 2019 to be 0.2% of 2019 earned premium, resulting in an underwriting profit of $2.9 billion, or 18% of premium. (For 2018, the underwriting profit was 23% of earned premium, or $4.1 billion.)

Fees Paid to Applicant Attorneys – Although generally part of incurred indemnity losses rather than expenses, the amount paid in 2019 to applicant attorneys was derived from the WCIRB’s Annual Expense Call. In 2019, applicant attorneys were paid $446 million. (In 2018, applicant attorneys were paid $386 million.)

CSHWC Publishes 2019 Annual Report

The Commission on Health and Safety and Workers’ Compensation (CHSWC), which was established in 1994, examines the health and safety and workers’ compensation systems in California and makes recommendations to improve their operation. The 324 page 2019 Annual Report is now available on the CHSWC website.

Here are some highlights of the latest Report:

The California workers’ compensation system covers an estimated 16,775,000 employees working for over 1,019,255 employers in the state. These employees and employers generated a gross domestic product of $2,968,118,000,000 ($3.0 trillion) in 2018. A total of 682,160 occupational injuries and illnesses were reported for 2018, ranging from minor medical treatment cases to catastrophic injuries and deaths. The total paid cost to employers for workers’ compensation in 2018 was an estimated $23.5 billion.

The advisory pure premium rates approved January 1, 2019, are on average 41 percent below those as of January 1, 2015. The charged rate rose on average by 21 percent from the first period of 2012 to its peak in 2015 and then decreased by 33 percent from the first period of 2015 to the first period of 2019. According to the WCIRB this decrease is largely due to the significant savings from SB 863.

Another significant accomplishment was the development and implementation of a streamlined process for California employers who wish to become self-insured to accomplish this process in a “speed-of-business” manner. In 2011, the total time required to complete the private self-insured application process and be issued a certificate of authority to self-insure was nearly nine months. In 2012, this was shortened to four to six months, with additional reductions during 2013 to less than 30 days. In 2014, OSIP successfully worked with private employers and completed this process consistently in less than 14 days.

Research on the impact of the 2012 workers’ compensation reforms on earnings losses suggests that SB 863 is likely to meet its primary objective of restoring adequate wage replacement rates, although some inequities still exist in these rates across impairments.

Operators in the underground economy create an unfair advantage over their law-abiding competitors and cost the state an estimated $8.5 billion to $10 billion in uncollected tax revenues each year. CSHWC suggest continued research into ways to identify the underground economy and ensure compliance with workers’ compensation and health and safety laws.

In recent years, criminal indictments and prosecutions have highlighted the extent of medical provider fraud in the workers’ compensation system. Estimates of the cost of this fraud to participants in the workers’ compensation system are as high as $1 billion per year.

Researchers Alarmed by Muscle Relaxer Prescription Increase

As U.S. opioid prescriptions continue to trend downwards, skeletal muscle relaxer scripts are on the rise, according to an analysis of the CDC’s National Ambulatory Medical Care Survey (NAMCS).

Between 2005 and 2016, the number of office visits in which muscle relaxers were prescribed, most commonly for back pain and musculoskeletal conditions, doubled from 15.5 million to 30.7 million, reported Charles E. Leonard, PharmD, MSCE, of the University of Pennsylvania in Philadelphia, and colleagues.

While office visits resulting in new skeletal muscle relaxer prescriptions during this period remained relatively stable at about six million per year, visits for continued therapy tripled from 8.5 million to 24.7 million, the researchers wrote in JAMA Network Open.

The proportion of older adults receiving muscle relaxant prescriptions increased three-fold across the study period such that by 2016, adults over 65 accounted for 22.2% of visits in which a muscle relaxant was prescribed, the team added. Also, 67.2% of continued muscle relaxant visits in 2016 were completed while the patient was on concomitant opioids.

“For a number of years now, the American Geriatrics Society has warned providers of prescribing skeletal muscle relaxers for older adults, and the long-term treatment with skeletal muscle relaxers was particularly concerning to us because most of the available data really only support short-term use of these drugs,” Leonard told MedPage Today, adding that in some cases, especially among younger people, the drugs may be considered.

Nationally, opioid prescriptions decreased by about 20% between 2006 and 2017, in part due to the CDC’s 2016 guidelines on opioid prescribing. Between 2015 and 2018, close to 11% of adults reported being on at least one pain medication prescription, and 6% said they were on opioids, per CDC data.

The take-home message here is that muscle relaxers are being overprescribed and we need to be aware they are not really innocent medication,” one researcher added.