Tag: 2020 News

The COVID-19 virus (coronavirus) is the latest in a series of infectious diseases that have emerged over the last 20 years. Since 2003, the world has seen the emergence of SARS, H1N1, Ebola, and Zika viruses.

While the overall impact of each disease has been well documented, you would be hard pressed to find meaningful information on how or even if the workers compensation system was affected.

The National Council on Compensation Insurance (NCCI) just reported on the potential implications of coronavirus for WC.

Is coronavirus compensable under WC? The answer to that question is “maybe.” While WC laws provide compensation for “occupational diseases” that arise out of and in the course of employment, many state statutes exclude “ordinary diseases of life” (e.g., the common cold or flu).

There are occupational groups that arguably would have a higher probability for exposure such as healthcare workers. However, even in those cases, there may be uncertainty as to whether the disease is compensable. Would time away from work during recovery be considered “temporary disability” or is it just normal “sick time”? While these questions linger, at least one state has taken steps to address compensability for WC.

On March 5, the state of Washington’s Department of Labor and Industries announced that it changed its policy related to workers compensation coverage for healthcare workers and first responders. Under the clarified policy, Washington state will provide benefits to these workers during the time that they are quarantined after being exposed to coronavirus on the job. The coverage will pay for medical testing, treatment expenses if a worker becomes ill or injured, and provide indemnity payments for those who cannot work if they are sick or quarantined.

It remains to be seen if other states will take the same measures relative to WC.

However, for general health insurance, at least 10 states have issued mandates for coverage of coronavirus. The mandates vary by state, but they include coverage for testing and visits to emergency rooms or urgent care facilities either in-network or out-of-network without deductibles or copays. These measures, if expanded to more states, could have the impact of limiting claim activity in the WC market in those cases where only testing or quarantine are necessary. Economic Impact

With a focus on worker safety, employers have begun to implement a number of policies related to coronavirus. These include limiting nonessential travel, maximizing telecommuting options, and being flexible on sick leave policies to encourage employees to stay home when they are ill. Some companies have also cancelled large in-person industry conferences.

As a result of these measures, it is reasonable to expect that certain sectors of the economy could begin to see impacts in the near future. The travel and hospitality sectors have been the hardest hit so far. But, over time, other industries could also be impacted depending on how general consumer attitudes and behaviors evolve.

This could have a negative impact on employment levels and the general economy, including the possibility of a recession. This creates some uncertainty about future payroll levels and overall claim frequency for WC, as both have been impacted by previous economic downturns.

California Governor Gavin Newsom announced the following appointments that are relevant to the workers’ compensation industry:

Katrina S. Hagen, 47, of Sacramento, has been appointed director of the California Department of Industrial Relations. Hagen has served as chief deputy director at the California Department of Tax and Fee Administration since 2017. She was deputy director of operations at the California Department of Human Resources from 2015 to 2017 and chief of human resources at the California Public Employees’ Retirement System from 2011 to 2015.

Hagen was adjunct faculty at the University of San Francisco from 2000 to 2011, deputy director at California Correctional Healthcare Services from 2006 to 2011 and assistant deputy director at the California Department of Corrections and Rehabilitation from 2002 to 2006.

She earned a Master of Public Administration degree from the University of San Francisco. This position requires Senate confirmation and the compensation is $195,708. Hagen is a Democrat.

Doris Ng, 53, of Berkeley, has been appointed general counsel at the Department of Industrial Relations. Ng has served as staff counsel at the Division of Labor Standards Enforcement since 2014. She was supervising attorney at Asian Pacific Islander Legal Outreach from 2011 to 2013, staff attorney at the Bay Area Legal Aid from 2008 to 2011 and supervising clinical attorney for the women’s employment rights clinic at the Golden Gate University School of Law from 2003 to 2007. Ng was staff attorney at Equal Rights Advocates from 1998 to 2003, associate attorney at Rosen, Bien and Asaro from 1996 to 1998 and a Ruth Chance law fellow at Equal Rights Advocates from 1993 to 1994.

She earned a Juris Doctor degree from the University of California, Los Angeles School of Law. This position does not require Senate confirmation and the compensation is $170,772. Ng is a Democrat.

Judith Freyman, 69, of Rocklin, has been reappointed to the Occupational Safety and Health Appeals Board, where she was served since 2012. Freyman was director and vice president of the western occupational safety and health group at Mercer ORC OSH Consulting from 2001 to 2012. She held several positions at ConAgra Refrigerated Foods from 1980 to 2001, including assistant general counsel and director of OSH and environmental affairs.

Freyman earned a Juris Doctor degree in employment law from Loyola University Chicago School of Law. This position requires Senate confirmation and the compensation is $138,874. Freyman is registered without party preference.

Cal/OSHA’s regulations require protection for workers exposed to airborne infectious diseases such as COVID-19, first identified in Wuhan City, China in December 2019.

This interim guidance provides employers and workers in health care settings with vital information for preventing exposure to the virus. Employers and employees should review their own health and safety procedures as well as the recommendations and standards detailed below, to ensure workers are protected from COVID-19.

Cal/OSHA requires employers covered by the Aerosol Transmissible Diseases (ATD) Standard (California Code of Regulations, title 8, section 5199) to protect employees from airborne infectious diseases such as COVID-19 and pathogens transmitted by aerosols. The ATD Standard applies to:

1. Hospitals, skilled nursing facilities, clinics, medical offices, outpatient medical facilities, home health care, long-term health care facilities, hospices, medical outreach services, medical transport and emergency medical services
2. Certain laboratories, public health services and police services that are reasonably anticipated to expose employees to an aerosol transmissible disease.
3. Correctional facilities, homeless shelters, and drug treatment programs.
4. Any other locations when Cal/OSHA informs employers in writing that they must comply with the ATD Standard.

Cal/OSHA recommends employers not covered by the ATD Standard follow recommendations from the Centers for Disease Control and Prevention (CDC), Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020.

Although the scope of the ATD Standard is limited to certain employers, there are other Cal/OSHA regulations that apply to all employers. These may be applicable to protect employees from exposure to the coronavirus where there is a significant risk in the workplace.

All employers must have an IIPP (title 8 section 3203) to protect employees from workplace hazards. Employers are required to determine if COVID-19 infection is a hazard in their workplace. If it is a workplace hazard, then employers must:

— Implement measures to prevent or reduce infection hazards, such as implementing the CDC recommended actions listed above
— Provide training to employees on their COVID-19 infection prevention methods

Regardless of COVID-19 risk, all employers must provide washing facilities that have an adequate supply of suitable cleansing agents, water and single-use towels or blowers.

Title 8 section 3380 Personal Protective Devices requires employers to conduct a hazard assessment to determine if hazards are present in the workplace that necessitate the use of PPE. If an employer identifies COVID-19 as a workplace hazard, they must select and provide exposed employees with properly fitting PPE that will effectively protect employees.

SpineFrontier is a medical technology company that designs, develops and markets both implants and instruments for spine surgery based on the Less Exposure Surgery (LES®). Since its founding in 2006, the company says it has launched 35 new products.

The U.S. Attorney’s Office is suing SpineFrontier and an associated consulting firm, Impartial Medical Experts (IME), as well as executives of both companies alleging they paid $8 million in kickbacks to induce surgeons to use the device company’s products.

Prosecutors also announced they had settled civil health care fraud claims against five physicians, each of whom admitted to seeking and obtaining kickbacks from SpineFrontier, via IME, for consulting work They did not perform.

Each physician also admitted that SpineFrontier, CEO Kingsley Chin, or CFO Aditya Humad specifically instructed them to bill “consulting” hours to SpineFrontier for each surgery in which they used a SpineFrontier device, regardless of whether they spent any time actually consulting.

The government alleges that SpineFrontier and IME paid more than $8 million in kickbacks to surgeons, which generated more than $100 million in revenue, with the vast majority of SpineFrontier’s total domestic sales revenues coming from kickback-tainted surgeries.

Each of the five settling surgeons cooperated with the government’s investigation into the defendants, according to prosecutors, who said they took that cooperation into account in these settlements.

In connection with the filing of its complaint, the government intervened in two private whistleblower lawsuits that had been filed under seal pursuant to the False Claims Act. The cases are United States ex rel. Birchall v. SpineFrontier, Inc. et al., No. 15-cv-12877 and United States ex rel. Miller & Bennett v. SpineFrontier, Inc. et al., No. 15-cv-12908.

And SpineFrontier FDA compliance problems date back many years. One started when Patricia Katz, a new accountant with SpineFrontier, Inc., enrolled in two compliance classes. By the time this story ends, Katz is fired and suing her former employer under the whistleblower protection law.

Katz says she learned that the company’s lot tracking and tracing procedures violated federal safety regulations for medical devices. When reviewing usage forms, Katz said she immediately noticed that the lot numbers associated with SpineFrontier’s medical devices were rarely, if ever, recorded.

Katz sent an anonymous email to the FDA to determine whether or not SpineFrontier was in fact required to record lot numbers.

When she received confirmation from the FDA that what she had learned in compliance training was correct and that what she had been told by SpineFrontier officials was wrong, she forwarded her correspondence with an FDA agent to three company officials.

She alleges that the company, in spite of positive job performance reviews, fired her for that behavior.

Anna Vishnevsky, 52, of Valley Village, the former owner of a Studio City medical clinic was sentenced to 37 months in federal prison for causing more than $11.5 million in bills to be submitted to health care benefit programs for unnecessary – and sometimes nonexistent – sleep studies, primarily for employees of United Parcel Service, Inc., and Costco Wholesale Corp.

She was also ordered her to pay $2,747,071 in restitution.

Vishnevsky, who owned Atlas Diagnostic Services, Inc., pleaded guilty in November 2018 to one count of health care fraud.

From March 2014 until June 2016, Vishnevsky participated in a scheme to defraud health care benefit plans. Vishnevsky and others working at her direction recruited patients to participate in sleep study testing at Atlas by offering them cash. She also offered them additional cash if they brought in other sleep study participants, including their co-workers and relatives.

Vishnevsky recruited patients, knowing that no doctor had prescribed sleep study testing for them and regardless of whether the testing was medically necessary or appropriate. Vishnevsky did not score or interpret the data from the testing or send it to anyone who could score or interpret it, which is necessary for diagnosis and treatment.

She submitted insurance claims for sleep study testing performed on the recruited patients, listing physicians that had never treated the patients. She also billed not only for the one night of sleep study testing that the patients had purportedly undergone – regardless of medical necessity – but also for an additional, consecutive night of sleep study testing that was never performed.

In total, Vishnevsky submitted more than $11.5 million in fraudulent insurance claims to health care benefit plans. She received approximately $3 million on those claims, of which $2,747,071 is still outstanding.

A co-defendant, Eddie Hernandez, 46, of Torrance, pleaded guilty in November 2018 to one count of health care fraud and is serving a 30-month federal prison sentence in this case. Hernandez was a UPS driver who helped Vishnevsky recruit people to participate in the fraudulent sleep studies.