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Tag: 2020 News

Ergonomics a Big Problem for Workers at Home

Millions of workers have been uprooted by COVID-19 and been thrown into a “new normal” of working from home offices. To further complicate things, many individuals were provided with only a laptop and little, if any, education on setting up an ergonomically correct workstation.

As a result, many home office – based workers potentially face suboptimal working conditions. Workers across the nation have converted their basements, spare rooms, dining room tables or bedrooms into makeshift offices.

Kermit Davis, PhD, an expert in office ergonomics at the University of Cincinnati College of Medicine, conducted an ergonomic assessment of employees at the University of Cincinnati sending out an email survey to 4,500 faculty and staff after the coronavirus pandemic prompted the university to join many other employers across the nation in sending workers home to continue operations.

The survey had 843 people complete it. As part of the study, 41 employees sent Davis photos of workers at home workstations for ergonomic review. This subset showed some trends and offered a glimpse into what many who work from home are encountering. The survey’s findings were recently published in the scholarly journal Ergonomics in Design.

Davis says the ergonomic evaluations of the home workstations identified many issues that could be adversely affecting the workers. Many chairs were the wrong height with about 41% too low and 2% too high. Fifty-three percent of workers had armrests on their chairs, but 32% did not use them and for 18% of workers the armrests were improperly adjusted, the study found.

Davis says not using the armrests causes contact stress on forearms when rested on the hard front edge of work surfaces and strain across the upper back as the arms need support. Also, support of the back of the chair was not used by 69% and often without any lumbar support for 73% of survey participants. That meant many individuals did not have proper support of their lower back, maintaining the lumbar curvature.

The position of a computer monitor was often too low or off to the side. Three quarters of monitors were laptops, which were too low relative to the workers’ eye height, the study found. External monitors were also routinely set up too low in 52% of participants or too high in 4%. Another common issue with the monitors was the lack of the primary screens centered in front of the workers occurring in 31% of workers and resulting in twisting of the neck and/or back to view the monitor, according to the study.

Here are a few tips that might be helpful for the homebound office worker:

— Place a pillow on your seat to elevate the seat height.
— Place a pillow or rolled up towel behind your back to provide lumbar and back support.
— Wrap armrests when they are low and not adjustable.
— Move your chair closer to the desk or table to encourage having the back against the back of the seat.
— If a laptop is too low, place a lap desk or large pillow under the laptop to raise the monitor when using it on the lap.
— Use an external keyboard and mouse, along with raising the laptop monitor by placing a stack of books or a box under the laptop when using a laptop on a desk.
— An appropriate standing workstation should have the top of the monitor at eye height and directly in front, keyboard at a height so that forearms are parallel to the ground (approximately 90° elbow angle), and a soft or rounded front edge to the working surface.
— If obtaining a new chair or identifying an appropriate sitting workstation at home is not possible, rotating between a poor sitting workstation and a standing workstation would be the next best practice. There are many simple, makeshift standing workstations available in the home, including implementing the use of an ironing board, a kitchen counter, the top of a piano, a clothes basket placed upside down on a table or desk or a large box under the laptop.

DEA Closes and Fines Yreka Pharmacy for Multiple Violations

KJL Consultants Inc., doing business as Luke’s Yreka Drug, and owner Lucas Walsh have agreed to pay $200,000 to resolve allegations that the pharmacy committed multiple violations of the Controlled Substances Act’s strict recordkeeping requirements.

The pharmacy permanently ceased operations in December 2018, and a key term of the settlement agreement included the pharmacy’s surrender of its DEA registration for cause.

The settlement relates to a DEA administrative audit and inspection of Luke’s Yreka Drug in September 2016 during which the DEA identified more than 150 Controlled Substances Act violations including failing to maintain the archived DEA-E-222 form for orders of controlled substances from a distributor, to properly document the quantity and/or date of controlled substances received from a distributor, and to conduct a complete and accurate biennial inventory.

To prevent diversion of opioids and other dangerous drugs and avoid harm to the public from abuse of these powerful substances, it is critical that all pharmacies, whether they be large national chains or small local stores like Luke’s, ensure that their drug transactions are properly documented, tracked and inventoried,” U.S. Attorney Scott said.

“This settlement emphasizes the importance of proper and diligent recordkeeping and the significant penalties to pharmacies that fail to do so.”

This settlement resulted from joint efforts of the U.S. Attorney’s Office for the Eastern District of California and the DEA. It was handled by Assistant U.S. Attorney Lynn Trinka Ernce.

Contra Costa Contractor Convicted for $2M Payroll Fraud

Maurosan Milhomem pleaded no contest to six felonies related to his complex fraud schemes of insurance premium fraud and payroll tax fraud. He also admitted a white collar crime enhancement that he caused the loss of more than $500,000.

Milhomem is the owner of Viking Pavers, Inc., a construction company based out of Point Richmond, California. The successful resolution to this criminal case was a result of a joint investigation by the Fraud Division of the California Department of Insurance, Criminal Investigation Division of the Employment Development Department, and the Contra Costa County District Attorney’s Office.

The Contractors’ State Licensing Board and Department of Industrial Relations previously issued Viking Pavers, Inc. civil citations in 2017. Investigators from the Board and Marin County District Attorney’s Office discovered a subcontractor work crew operating for the company without a license and without worker compensation insurance under the name FF Services during a random job site inspection.

The Business and Professions Code does not permit construction companies to subcontract construction work unless the crews have their own license. This is because licensed subcontractors are required to have their own bond and workers compensation insurance to protect homeowners and employees.

The District Attorney’s Office learned of the fraud after employees of Viking Pavers were involved in a vehicle accident. The employees were never reported during premium audits as employees or subcontractors. These audits help confirm if an employer is following the law and ensure the appropriate classifications for their employees and subcontractors.

The investigation by the Contra Costa County District Attorney’s Office revealed that Viking Pavers continued to use FF Services as an unlicensed subcontractor after the civil citations and throughout 2018. The company re-routed the payments off the books to avoid detection during required audits. Forensic accountants traced payments to FF Services and other unlicensed and uninsured work crews, initially through a check cashing service in Richmond, California, and then through the bank accounts of a newly created a shell company. A subsequent search warrant at the business resulted in the seizure of over $80,000 in cash.

Milhomem will serve 364 days in county jail and is eligible to serve the sentence through electronic home detention. In addition, he will serve five years of formal probation. He is ordered to pay $1,109,603 to Markel Corporation for the underpayment of workers’ compensation insurance premium, $808,455.34 to the Employment Development Department for the underpayment of tax liability and $312,000 to Berkshire Hathaway for the underpayment of workers’ compensation insurance premium.

The Court ordered the seized cash forfeited as criminal restitution pursuant to the plea agreement.

4000 Federal COVID-19 Comp Claims Strain Resources

About 4,000 federal employees have filed workers’ compensation claims with the Labor Department due to COVID-19. 60 people have filed death claims. Labor projects COVID-19 claims among federal employees may reach 6,000 in the coming weeks.

As part of Phase 1 of the Office of Inspector General’s Pandemic Oversight Response Plan, a new report published this month presents the results of its audit of the Office of Workers’ Compensation Programs’ (OWCP) initial response to the pandemic.

It conducted a performance audit to answer the following question: To what extent has COVID-19 affected OWCP’s ability to process and adjudicate claims, and what has OWCP done to address challenges encountered?

The department’s inspector general says the division that handles federal employee claims is anticipating a strain in resources due to demand and social distancing mandates. It has alternative staffing plans if COVID-19 compensation claims continue to surge. Labor says it’s accepted over 1,600 federal employees claims so far. Over 2,300 are unadjudicated.

It found that most OWCP programs are experiencing or expecting delays and resource management issues as a result of increasing claims or social distancing mandates brought on by the pandemic. In response, the programs are tracking delays, providing guidance, extending deadlines, and taking additional actions as needed.

Specifically:The Division of Federal Employees’ Compensation (DFEC) is expecting a potential strain on resources and claims processing delays. To address these potential challenges, DFEC developed a contingency plan, issued new procedures for handling COVID-19 claims, and created a COVID-19 Task Force to oversee claims development and adjudication.

The Division of Coal Mine Workers’ Compensation (DCMWC) is experiencing challenges in its ability to process claims timely because a significant number of approved physicians have temporarily suspended pulmonary examinations, which are required for a coal miner’s claim to be processed. These delays are creating a backlog that could strain resources when physicians resume claimant examinations. DCMWC is tracking the delays and has taken steps to assist claimants, including publishing guidance on its website and extending deadlines.

The Division of Energy Employees Occupational Illness Compensation (DEEOIC) is experiencing delays in obtaining required information from certain Department of Energy facilities and physicians who have closed or limited operations during the pandemic. DEEOIC is tracking a small number of impacted claims and allowing for extensions in these cases.

The Division of Longshore and Harbor Workers’ Compensation (DLHWC) has not experienced, nor is it expecting, any significant impact from the COVID-19 pandemic.

Failure to Warn Teacher Supports Serious and Willful Award

On September 30, 2008, Patrick Sauceda was injured while working as a teacher for the Fresno Unified School District. He injured his head, left eye, and left knee following a physical attack by a student. The case was resolved by a Stipulations with Request for Award on December 13, 2010.

He then filed a Petition for Increased Benefits for Serious and Willful Misconduct of Employer. He alleges thad his industrial injury was the result of being assaulted by a special education student who had been previously identified and known to the School District to be a person with propensities for causing serious injury to others and who had stated on more than one occasion that he intended to kill or cause serious injury to Mr. Sauceda.

He claimed that the special education program manager, Nancy Miser, “was advised that a specific student in applicant’s classroom had a prior history of physically attacking two different teachers on separate occasions at a previous school [and] that this student had made specific threats that he intended to kill or seriously injury applicant,” but Ms. Miser refused a request to move the student to “another emotionally disturbed program on another campus,” stating that “applicant would have to find a way to deal with the student.”

The classroom had no radio or telephone for use in case of emergency.

The WCJ awarded Serious and Willful Misconduct benefits. Reconsideration was denied in the split panel decision of Sauceda v Fresno Unified School District.

Labor Code section 4553, a finding of liability is appropriate where the employer 1) knew of the dangerous condition; 2) knew that the probable consequences of the continuance of that condition would involve serious injury to an employee; and 3) deliberately failed to take corrective action.

Here, it is undisputed that defendant knew of the dangerous condition. Defendant has admitted to knowing that the student assailant had a prior history of physically attacking two different teachers on separate occasions at a previous school and that this student had made specific threats that he intended to kill or seriously injury applicant.”

Applicant has amply shown that defendant deliberately failed to take corrective action. Defendant has made no attempt to deny that, when presented with the evidence from the student assailant’s file, the administrative team at applicant’s place of work declined to take any action to remove the student assailant from applicant’s classroom.

Six NFL Players Charged in Superseding Healthcare Fraud Indictment

Six former National Football League (NFL) players have been charged in a superseding indictment in the Eastern District of Kentucky for their alleged roles in a nationwide fraud on a health care benefit program for retired NFL players.

Darrell Reid, 38, of Farmingdale New Jersey, Antwan Odom, 38, of Irvington, Alabama, Anthony Montgomery, 36, of Cleveland, Ohio, Clinton Portis, 38, of Fort Mill, South Carolina, Tamarick Vanover, 46, of Tallahassee, Florida, and Robert McCune, 41, of Riverdale, Georgia, were charged in the superseding indictment. Each of the defendants was charged with one count of conspiracy to commit health care fraud and wire fraud. Reid, Odom, Montgomery, and Portis were also each charged with one count of wire fraud and one count of health care fraud. Vanover was also charged with two counts of wire fraud and two counts of health care fraud. And McCune was also charged with 10 counts of wire fraud, 12 counts of health care fraud, and three counts of aggravated identity theft.

McCune and 11 other former NFL players, including Portis and Vanover, were previously charged in the Eastern District of Kentucky in December 2019 for their alleged roles in the fraud. The alleged fraud targeted the Gene Upshaw NFL Player Health Reimbursement Account Plan, which was established pursuant to the 2006 collective bargaining agreement and provided for tax-free reimbursement of out-of-pocket medical care expenses that were not covered by insurance and that were incurred by former players, their wives and their dependents – up to a maximum of $350,000 per player. According to the charging documents, over $3.9 million in false and fraudulent claims were submitted to the Plan, and the Plan paid out over $3.4 million on those claims between June 2017 and December 2018.

Since the initial charges were announced, seven of the defendants have entered guilty pleas. Correll Buckhalter, James Butler, Joseph Horn, Etric Pruitt, Ceandris Brown, John Eubanks and Donald “Reche” Caldwell, who passed away in June, each pleaded guilty to conspiracy to commit health care fraud.

On June 22, 2020, Brown was sentenced for his role in the scheme to a term of incarceration of 12 months and one day. Sentencing for the remaining defendants is pending.

The superseding indictment adds Reid, Odom, and Montgomery as defendants for their roles in the scheme, and it adds additional charges against McCune: three counts of aggravated identity theft for McCune’s unlawful use of the identity of other persons as part of this scheme; and two counts of health care fraud for a scheme whereby McCune allegedly submitted or caused the submission of false and fraudulent claims to the Plan on his own behalf.

The superseding indictment alleges that the scheme to defraud involved the submission of false and fraudulent claims to the Plan for expensive medical equipment – typically between $40,000 and $50,000 for each claim – that was never purchased or received. The expensive medical equipment described on the false and fraudulent claims included hyperbaric oxygen chambers, cryotherapy machines, ultrasound machines designed for use by a doctor’s office to conduct women’s health examinations and electromagnetic therapy devices designed for use on horses.

The superseding indictment further alleges that McCune, Vanover, and others recruited other players into the scheme by offering to submit or cause the submission of these false and fraudulent claims in exchange for kickbacks and bribes that ranged from a few thousand dollars to $10,000 or more per claim submitted. As part of the scheme, the defendants allegedly fabricated supporting documentation for the claims, including invoices, prescriptions and letters of medical necessity.

San Diego Laboratory Pays $49 Million For Fraud and Kickbacks

San Diego-based clinical laboratory Progenity, Inc. admitted that it submitted fraudulent bills to TRICARE, the Department of Defense health care benefit program that covers military service members and their dependents, and to the Federal Health Care Employee Benefits Program (FEHBP), for clinical tests that it knew were not covered or properly payable by either program.

In addition, Progenity, formerly known as Ascendant MDx, Inc., and previously headquartered in Carlsbad, California, admitted that it offered improper incentives to patients and doctors to use its laboratory services.

To account for its fraud, Progenity has agreed to pay a total of $49 million in civil settlements in federal courts in the Southern District of California (SDCA) and the Southern District of New York (SDNY), as well as to multiple states.

Progenity offered noninvasive prenatal testing (“NIPT”) to pregnant women. NIPT refers to a category of genetic tests that screen for fetal chromosomal abnormalities, through analysis of fetal DNA present in a pregnant woman’s blood.

This form of genetic testing, however, did not have FDA approval and was considered by TRICARE as a “laboratory-developed test.” As a result, TRICARE did not cover NIPT tests for its beneficiaries.

Therefore, in order to get reimbursed by TRICARE, Progenity falsely and fraudulently used a medical billing code that TRICARE covered, but that Progenity knew did not accurately reflect that the NIPT test.

The U.S. Attorney’s Office for SDCA launched both a criminal probe into Progenity’s fraudulent billing practices and a civil investigation of the false claims Progenity had submitted to TRICARE and the FEHBP. Separately, SDNY initiated its own investigation into misconduct by Progenity relating to the improper incentives provided to patients and doctors to use its laboratory services. SDNY also coordinated with multiple state Attorneys General to investigate Progenity’s miscoding of NIPT to Medicaid programs in New York and several other states.

Progenity’s settlement agreement requires the company to pay $16.4 million to settle the SDCA civil matter, $19,449,316 to settle the SDNY civil matter, and $13,150,684 to settle the state civil allegations.

The civil settlements were based on an ability-to-pay, payment-over-time basis, following an analysis of financial condition submissions made by Progenity. In light of Progenity’s remedial efforts, cooperation with the investigation, and payment of restitution to TRICARE and the FEHBP, the criminal investigation was resolved via a non-prosecution agreement, requiring that Progenity admit its misconduct and be subject to additional terms and conditions for up to a 24-month period.

Lawmakers Consider List of COVID-19 New Workplace Protections

With many of California’s workplaces facing significant changes fueled by the COVID-19 pandemic, state lawmakers are considering whether labor laws also need to evolve.

Legislators have proposed expanding workers’ compensation eligibility so that more employees will be covered if they are diagnosed with COVID-19, increasing the number of sick days for food service workers and requiring employers to pay a portion of utility and internet bills for teleworkers.

MSN reports that Gov. Gavin Newsom said that he plans to work “hand in glove” with the Legislature to expand workplace protections, including guaranteeing COVID-19-related sick leave, easing workers’ compensation claim requirements, enforcing labor laws and ensuring employers are reporting outbreaks.

Assemblywoman Lorena Gonzalez (D-San Diego) and state Sen. Jerry Hill (D-San Mateo) both have bills to ease restrictions on workers’ compensation so more employees have access to the benefit. Talks are underway to combine Gonzalez’s bill with Hill’s legislation, Senate Bill 1159, the lawmakers said.

SB 1159 would add coronavirus-related illness or death to the list of on-the-job injuries covered under the state’s workers’ compensation program while removing a requirement that workers prove they contracted the virus on the job. Instead, employers would have to prove that COVID-19 wasn’t contracted in the workplace.

Newsom included a similar measure for essential workers in a May 6 executive order – a big win for labor unions. However, that executive order only eased the burden of proof for workers with COVID-19 before July 5.

As currently written, Gonzalez’s bill, AB 196, would go a step further than Hill’s legislation by creating a presumption that essential workers who contract COVID-19 were infected while on the job, with no ability for the employer to contest that finding.

Among the other workplace bills the Legislature will consider in the coming weeks is AB 3216 by Assemblyman Ash Kalra (D-San Jose), which would make it an unlawful employment practice to refuse a request for up to 12 weeks of job-protected leave from a worker who needs to care for a child whose school or daycare has closed due to a state, local or federal public health emergency.

Assembly Bill 1492 by Assemblywoman Tasha Boerner Horvath (D-Encinitas) would ease workplace restrictions dictating when employees must take meal and rest breaks during the day – a proposal intended to provide more flexibility in working from home – while requiring employers to pay for an additional hour of work if the employer requires workers to skip those breaks. The bill also would require an employer to pay for equipment needed to work from home and a portion of the worker’s home internet and utility bills.

Senate Bill 729 by state Sen. Anthony Portantino (D-La Cañada Flintridge) would require employers to provide an additional 80 hours of paid COVID-19 sick leave to full-time food sector workers during a declared local or state emergency.

Lawmakers have until Aug. 31 to send bills to Gov. Newsom before adjourning for the year.

MSP Reimbursement Not Time Barred 6 Years Post Settlement

In an opinion out of the United States District Court for the District of New Jersey, Osterbye v. United States, 2020 U.S. Dist. LEXIS 116591 , the Court denied Defendant Selective Insurance’s Motion to Dismiss Plaintiff’s suit and allegations that Defendant failed to reimburse Medicare for Osterbye’s medical expenses under the Medicare Secondary Payer Act (MSP) private cause of action pursuant to 42 USC § 1395y(b)(3)(A).

Plaintiffs’ decedent, Anna May Osterbye, a Medicare beneficiary, was injured in a fire at her home allegedly caused by the negligence of a plumbing contractor, insured by the Defendant. Osterbye.

The claim resulted in a settlement in the amount of $740,000 including $13,562.90 that Medicare estimated for reimbursement of conditional payments. On April 29, 2013, the Plaintiffs executed a Release.

After Plaintiffs reimbursed $13,562.90 to Medicare, Medicare issued a final demand letter for an additional amount of $118,071.28 on June 4, 2013. The Plaintiffs then proceeded to exhaust administrative appeals with Medicare. On June 26, 2019, the Medicare Appeals council dismissed Plaintiffs’ request for review.

On August 28, 2019, Plaintiffs elevated the dispute to the United States District Court. Defendant’s Motion to Dismiss asserted two main arguments 1) The statute of limitations time-bars Plaintiff’s MSP claim and 2) Dismissal is appropriate based upon the settlement agreement and release.

With respect to the statute of limitations defense, administrative remedies were not exhausted until June 26, 2019- over 6 years after the settlement and release were executed. Plaintiffs were unable to seek judicial review on their MSP claim until all administrative remedies were exhausted. It was not apparent on the face of Plaintiffs’ Complaint that Plaintiffs’ MSP private cause of action is time-barred and denied the Motion to dismiss on the statute of limitations defense.

Defendant argued that the Court should dismiss Plaintiff’s claims by enforcing the Release Plaintiffs executed on April 29, 2013. The Court ultimately determined that whether the Plaintiffs’ Release should be nullified based on mutual mistake turns on a factual inquiry that was better left for a later time.

The ultimate outcome of this case is yet to be determined; however, there are several clear warning signals and reminders found within this case. Relying on an initial Conditional Payment Letter, and not a Final Demand amount can leave a primary payer open to significant exposure. Understanding the Conditional Payment Recovery process also includes understanding the inner workings of the Medicare Administrative Appeals process, and the associated delay.

Researchers Report on Effectiveness of COVID-19 Masks

The CDC has recommended wearing a mask to reduce spread of the SARS-CoV-2 virus, although surgical and N95 type masks should be reserved for healthcare settings due to limited supply. Studies and meta-analyses have backed reduced transmission of the virus with the lower-grade masks and supported multi-layer versions as more protective.

In a surrogate-marker study of protection against COVID-19 spread led by Raina MacIntyre, MBBS, PhD, of the Kirby Institute at UNSW Sydney in Australia, high-speed video capture of droplet dispersal and aerosolization showed the result when a healthy volunteer coughed, sneezed, and talked while wearing a range of masks.

MacIntyre’s study used the CDC’s directions for a single-layer, “quick cut T-shirt face covering (no-sew method)” and a two-layer mask following the agency’s method for sewing one. The cloth used was made of 175 g/m2 cotton fabric with a thread count of 170 TPI, close to what’s used in quality T-shirts.

“From the captured video it can be observed that, for speaking, a single-layer cloth face covering reduced the droplet spread but a double-layer covering performed better,” they reported in a case study in Thorax. “Even a single-layer face covering is better than no face covering.

For coughing and sneezing, though, a double-layer cloth face covering was significantly better at reducing the droplet spread. A three-ply surgical mask performed best of all for every type of respiratory emission, the group noted.

A recent study in JAMA showed a decline in healthcare workers testing positive for SARS-CoV-19 after implementing universal masking of patients. CDC leaders pointed to it as “practical, timely, and compelling evidence that community-wide face covering is another means to help control the national COVID-19 crisis,” which they suggested is “a civic duty, a small sacrifice reliant on a highly effective low-tech solution that can help turn the tide favorably in national and global efforts against COVID-19.”

Meanwhile, a group at Duke University in Durham, North Carolina, offered some suggestions for overcoming resistance to mask wearing.

“The way we communicate is going to be very critical here,” noted Gavan Fitzsimons, MBA, PhD, a consumer behavior expert there, and “using a term like ‘selfish,’ I think, is going to lead people who are already digging in to dig in even harder.”

Communicating benefits rather than threats may also help, said Lavanya Vasudevan, PhD, MPH, of Duke’s Center for Health Policy and Inequalities Research.