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Tag: 2021 News

April QME Examination Now In-home by Computer

The Division of Workers’ Compensation (DWC) is now accepting applications for the Qualified Medical Evaluator (QME) examination for April 17, 2021.

DWC will offer in-home computer-based testing (CBT) for the April 2021 QME examination using Proctor U.

Candidates who are interested in taking the CBT exam and have the minimum system requirements should indicate so on the application. CPS HR Consulting, the vendor managing the QME Exam, will notify interested candidates of the registration and scheduling process.

DWC will continue to offer an in-person examination in Northern and Southern California on April 17, 2021 following the guidelines and recommendations by the CDC and California Department of Public Health. The test sites will be announced on the Registration Notices.

Application and Registration packet for the QME exam may be downloaded from the DWC website.

Applicants may also contact the Medical Unit at 510-286-3700 to request an application via U.S. mail, email or fax. The deadline for filing the exam applications is March 4, 2021. No applications will be accepted after this postmarked date.

For more information, contact the Medical Unit at 510-286-3700 or by email at QMETest@dir.ca.gov..

California COVID Vaccine Distribution Faces Logistical Issues

Distribution of the COVID vaccines, which in California is done in several phases and prioritizes first doses for health care workers and people at risk of becoming severely ill from the virus, has lagged other jurisdictions by a considerable margin.

Nationwide, about 6.7 million Americans have received a vaccine dose according to the Centers for Disease Control and Prevention. The CDC has projected that close to 90 million people will be vaccinated by March, still under one third of Americans and far less than the 70% officials say is needed to reach herd immunity.

In California, vaccine rollout has been beset by a number of issues that bring into focus challenges that come with such a gargantuan effort.California has received just over 2 million vaccine doses but only administered about 652,000 of them as of Jan. 8.

Vaccine doses are also lower than anticipated, with officials estimating they won’t have enough doses to immunize “most” residents of its 58 counties until the summer.

Lags are also tied to ultra-low temperature storage requirements for the Pfizer vaccine, a shortage of vaccination sites and staff to administer doses and a delay in setting up systems to track who is immunized and where they live.

The Golden State has the nation’s highest total of people infected with Covid-19, with more than 2.5 million cases. As of Jan. 7, health departments statewide have reported 73,862 positive cases among health care workers and 276 deaths.

California recently told local health departments and providers to expand vaccine eligibility by offering doses to community health and testing site workers, public health field staff and dental clinic and pharmacy personnel.

More than 586,000 health care workers in California have received the first dose of a Covid-19 vaccine, according to state data.

The new guidance also says once demand has subsided from the first priority group, doses should be allocated to people age 75 and older, childcare workers, staff in emergency response and food service and educators.

Los Angeles County, where about 1 in 5 people being tested for Covid-19 are currently testing positive, is the largest from a cluster of Southern California counties that has received about 256,000 doses from the state, the largest quantity of any region. The area includes Orange, San Luis Obispo, Santa Barbara and Ventura counties.

Still, there aren’t enough vaccine doses currently available to immunize even half of the county population by spring, Dr. Paul Simon, chief science officer at LA County’s Department of Public Health, said Friday.

The county said in a statement Friday it opened 19 vaccination sites this week and will open 75 more by next week.

Martin Brady Appointed CHSWC Chair for 2021

The California Commission on Health and Safety and Workers’ Compensation (CHSWC) announce the unanimous election of Commissioner Martin Brady as the Chair of the Commission for 2021.

The election was held at the December 3, 2020 public CHSWC meeting held online due to the current Covid-19 pandemic.

Martin Brady is Executive Director at Schools Insurance Authority, where he has worked since 1988.

He is a member of the California Joint Powers Authority, California Coalition on Workers’ Compensation, Public Agency Risk Managers Association, Public School Risk Institute, Association of Governmental Risk Pools and the Public Risk Management Association.

Mr. Brady has been a member of the Commission since 2012.

CHSWC, created by the workers’ compensation reform legislation of 1993, is charged with examining the health and safety and workers’ compensation systems in California and recommending administrative or legislative modifications to improve their operation.

CHSWC was established to conduct a continuing examination of the workers’ compensation system and of the state’s activities to prevent industrial injuries and occupational diseases and to examine those programs in other states.

Information about CHSWC and its meetings is available online. Information may also be obtained by writing to the Commission on Health and Safety and Workers’ Compensation, 1515 Clay Street, 17th Floor, Oakland, CA 94612; by calling (510) 622-3959; by faxing a request to (510) 286-0499; or by emailing chswc@dir.ca.gov.

Due to the current Covid-19 pandemic, CHSWC public meetings will be held online until further notice.

DWC Allows Walk-Through Documents at Local Offices

Since the onset of the COVID-19 crisis in March, the Division of Workers’ Compensation (DWC) has worked hard to ensure the continuity of its services to the workers’ compensation community. District offices continue to hear all cases either via teleconference or by video.

In an additional measure to keep DWC and the workers’ compensation community safe, DWC has not accepted any walk-in documents or walk-through documents since March. Documents have only been accepted via e-filing, JET filing or by mail during this time. Recently, DWC issued a Newsline further encouraging the workers’ compensation community to file documents by e-filing or JET filing due to the limited availability of staff in our district offices.

The Workers’ Compensation Appeals Board (WCAB) recently issued an en banc decision suspending Regulation Section 10789(c) on walk-throughs. This change allows DWC, effective January 11, to now offer a “walk-through alternative” in the Lifesize video conferencing platform. Instructions on using that platform may be found on the DWC website.

District offices will be available for walk-throughs Monday through Friday, from 2 to 4 p.m. only. Walk-throughs will be available only for a Compromise and Release, or Stipulation with Request for Award at this time. To be heard, the documents must be filed at least 24 hours ahead of the walk-through appearance, by either JET filing or e-filing. Documents filed by U.S. mail must be available to the judge in EAMS prior to the walk-through.

DWC has previously posted instructions on how to e-file settlement documents. The walk-through procedure will be handled via the Lifesize virtual courtroom which will be available for each office. A list of links for each office may be found here. The link for each virtual walk-through courtroom will not change. It should be noted that a judge will handle as many walk-throughs as are feasible for the day. The order in which a judge will hear the walk-throughs will be up to the judge handling that day’s matters. We encourage parties to file proposed orders to assist the judge with handling the matter more expeditiously.

DWC understands that parties may want to walk-through other documents. However, at this time walk-throughs are limited to only a Compromise and Release or Stipulation with Request for Award. Limits will be based on both availability and pursuant to the DWC/WCAB Policy and Procedural Manual section 1.25.

DWC will be monitoring the impact of this program and will look to expand hours and documents allowed in the future based on staffing availability.

Workplace Deaths (Non-Pandemic) Rose 2% in 2019

The number of U.S. workplace deaths rose 2% in 2019 to 5,333 from 5,250 fatal workplace injuries in 2018, according to the most recent Census of Fatal Occupational Injuries released by the Labor Department’s Bureau of Labor Statistics (BLS). The fatal work injury rate was 3.5 fatalities per 100,000 full-time equivalent (FTE) workers, the same rate reported in 2018.

It was the highest number of fatalities reported since 2007. Transportation incidents continued to account for the largest share of fatalities; transportation incidents increased 2% in 2019 to 2,122 cases. Falls, slips, and trips increased 11% in 2019 to 880 cases.

Other key findings in the BLS report included:

— The 5,333 fatal occupational injuries in 2019 represents the largest annual number since 2007.
A worker died every 99 minutes from a work-related injury in 2019.
Fatalities among workers age 55 and over increased 8 percent from 1,863 in 2018 to 2,005 in 2019, which is the largest number ever recorded for this age group.
Hispanic or Latino worker fatalities were up 13 percent to 1,088 in 2019–a series high since 1992.
Workplace deaths due to suicides (307) and unintentional overdoses (313) increased slightly in 2019.
Fatalities in the private construction industry increased 5 percent to 1,06- the largest total since 2007.
Driver/sales workers and truck drivers incurred 1,005 fatal occupational injuries, the highest since this series began in 2003.

Both the NSC and American Society of Safety Professionals (ASSP) responded to the CFOI report, calling for employers to take consistent, systemic action to curtail the number of workplace deaths.

“Fatalities should never be the cost of doing business,” NSC said in a statement. ASSP urged employers to adopt voluntary national consensus standards and implement safety and health management systems in response to numbers of workplace fatalities reported in 2019.

“With many safety advancements being readily available to employers nationwide, it’s troubling that we’re continuing to see higher numbers of worker fatalities,” said ASSP President Deborah Roy said in a statement.

ASSP said that employer efforts to improve workplace safety should involve safety and health management systems like the one specified in the group’s Z10.0-2019 standard.

Irvine Diagnostic Lab Pays $358K to Resolve False Claim Charges

Exceltox, a California diagnostic laboratory located in Irvine California, has agreed to pay $357,584 to resolve allegations that it violated the False Claims Act by submitting or causing to be submitted claims for genetic tests to Medicare without valid physician oversight..

Between September 2015 to November 2015, Exceltox used the services of contractor Seth Rehfuss, of Somerset, New Jersey, who persuaded groups of senior citizens in senior housing complexes to submit to genetic testing, despite applicable Medicare rules requiring proper orders from a treating physician for such tests.

Exceltox, in turn, submitted claims for payment to Medicare for Rehfuss’ genetic tests performed without valid physician oversight.

Rehfuss previously pleaded guilty in Trenton federal court to a superseding information charging him with conspiracy to commit health care fraud and was sentenced in May 2019 to 50 months in prison.

Exceltox was also connected with the prosecution of a Bakersfield physician in 2019, Jason Helliwell, who was at the time on probation by the state medical board for negligent patient care and sex with patients, faced criminal allegations of billing fraud.

Helliwell and two others were charged Sept. 4 2019, in a 31-count criminal complaint alleging a fraudulent medical billing scheme, according to the complaint filed by the Kern County District Attorney’s Office.

The complaint alleges that Helliwell, 47, conspired with Brandon Williams, 40, a sales representative for Irvine-based Exceltox toxicology lab, and Tamara Head, 53, owner of Rosedale Medical Billing Solution, to charge insurance companies for medically unnecessary treatment. The alleged fraud in the complaint dates back to 2010 and occurred as recently as 2016.

The schemes alleged in the DA’s complaint and investigative reports involve Helliwell ordering unnecessary blood and urine tests for patients for which Head is accused of fraudulently charging insurance companies. Helliwell received kickbacks from Williams, whose lab performed some of the testing, for the samples.

Reports state that Helliwell would collect urine samples from patients for lead and mercury testing and would “surreptitiously” order additional testing for illicit drugs without the patient’s knowledge.

Helliwell was given $20 to $25 per patient sample by the toxicology lab, former employees told an investigator, and the lab also paid for a personal medical assistant for Helliwell, according to reports.

Helliwell also ordered testing on an in-house blood allergy machine for patients who didn’t complain of allergy symptoms, the reports said.

Emails obtained between Helliwell and Head indicated the two worked together to bill insurance companies for services not provided to patients, to bill under other doctor’s names and to manipulate billing to receive higher reimbursements, the reports said.

The discovery was made as part of a joint investigation with the California Department of Insurance, according to Kern County Deputy District Attorney Joseph Kinzel.

L.A. and San Francisco Order $5/hr “Hero Pay” for Grocery Workers

Los Angeles County on Tuesday approved a proposal to require national grocery and drug retailers operating in unincorporated areas of Los Angeles County to pay frontline workers an additional $5 per hour in “hero pay.”

Supervisors Hilda Solis and Holly Mitchell co-authored the motion calling for a temporary “urgency” ordinance that would apply to store chains that are publicly traded or have at least 300 employees nationwide and more than 10 employees per store. Supervisor Kathryn Barger abstained from the vote, which was 4-0.

“There’s no question that these people deserve hero pay,” Barger said, but told her colleagues that she wanted to make sure there would not be unintended consequences before offering her support.

The motion pointed to a rising number of outbreaks of the virus in grocery stores and the additional stress that workers suffer when they cannot consistently maintain distance from crowds of customers at work. Workers also bear increased child care costs incurred while kids are at home distance learning.

Solis and Mitchell noted that several grocery corporations offered $2 to $4 hourly raises at the outset of the pandemic, but that additional support lapsed in May.

The California Grocers Association pushed back hard, agreeing that their employees are heroes, but that the ordinance would result in higher food costs, hurting low-income families and seniors already struggling to cover those costs.

“Grocery store workers are frontline heroes, and that’s why grocers have undertaken a massive effort to institute store policies to make both workers and customers safer,” California Grocers Association President and CEO Ron Fong said. “Many grocers have already provided workers with extra pay, bonuses and generous health benefits during the pandemic as a supplement to the fair, competitive wages and benefits collectively bargained by grocery workers’ unions.”

San Francisco supervisors have also passed a resolution Tuesday to give them hazard pay, after urging large chain grocery stores to raise hourly wages for employees by $5.

The $5 in hazard pay would last while the city remains in the purple, red or orange tier on the state’s tiered system.

The extra compensation would not be required of small mom-and-pop groceries.

PhRMA Loses Challenge to California Drug Transparency Law

Courthouse News reports that the pharmaceutical industry’s effort to block California’s requirement that drug companies publicly notify and explain major price increases has stalled, with a federal judge ruling the landmark transparency law does not violate the First Amendment.

Siding with the state, a U.S. District Judge rejected an industry group’s arguments that the 2017 bill infringes drugmakers’ free speech and regulates interstate commerce. Noting the Pharmaceutical Research and Manufacturers of America (PhRMA) willingly bypassed discovery and pushed for summary judgment, the court found the group’s case plainly underdeveloped and unfit for market.

“There are genuine disputes of material fact as to whether providing advance notice of certain increases in a prescription drug’s wholesale acquisition cost results in either direct or extraterritorial regulation,” the judge explained while denying the group’s facial challenge. “Ultimately, PhRMA has not met its burden in showing that Senate Bill 17 violates the dormant Commerce Clause on its face.”

Hoping to force the industry to explain sudden increases to Californians, a bipartisan group of lawmakers approved the transparency bill in 2017. Then-Governor Jerry Brown quickly signed the bill, saying the public deserved more information on medication costs with “pharmaceutical profits soaring.”

Supported by an influential coalition of California unions and health care groups, SB 17 requires drug companies to give the state and insurers at least 60 days’ notice before planned price increases of more than 16% over a two-year period. It also forces insurance companies to file yearly reports with state regulators outlining the impact of medicine costs on health care premiums.

Additional reporting requirements include annual reports to regulators by health plans and insurers with specified information related to the proportion of the premium dollar spent on prescription drugs, the year-over-year increase in net costs and member costs, the 25 most frequently prescribed medications, most costly drugs by total plan spending, and drugs with the highest year over year increase in net cost.

The law also tasks regulators with compiling the information into a consumer-friendly report showing the overall impact of drug costs on health care premiums.

Shortly after its passage, the industry responded with its lawsuit in the Eastern District of California, arguing the state was picking on drug manufacturers and ignoring the underlying reasons for spiking costs.

In court, the group contended the advance-notice requirement effectively triggers a “60-day nationwide price freeze” by preventing manufacturers from increase a drug’s wholesale acquisition cost or list price. It also claimed SB 17 interferes with Medicaid reimbursement schemes enacted in other states.

“That is unconstitutional,” the group claimed in court papers. “The Commerce Clause does not permit a single state to ‘project its legislation into other states by regulating the price to be paid for drugs in those states.’”

Following the defeat, the group’s public affairs director hinted an appeal was likely.

“Our position remains that SB 17 is unconstitutional. We will continue to make that case,” said Nick McGee in an email.

Union Head to Serve 12 Years for Stealing Health Plan Funds

John S. Romero, 74, of Loma Linda, the former president of a Colton-based labor union was sentenced to 144 months in prison for stealing nearly $800,000 from the union’s health plan trust fund, which he used to pay for personal expenses including legal bills and a car loan for his son’s sports car.

At the conclusion of a five-day trial, a jury found Romero guilty of one count of conspiracy, 12 counts of theft in connection with health care, and one count of making a false statement to a government agency.

Romero appointed himself president of United Industrial Services Workers of America (UISWA) and trustee of the UISWA health plan trust fund. Money paid into the fund was supposed to be used exclusively for health care benefits of its participants. Instead, Romero stole the union’s health funds for the benefit of himself and his immediate family.

In furtherance of his scheme, Romero appointed a sham trustee who had no prior experience with unions. He also actively misled the third-party administrators of the health plan into making improper payments from the trust fund.

From 2008 to 2014, Romero embezzled health plan funds to pay a $110,000 personal civil judgment against himself and his son, John J. Romero, 55, also of Loma Linda. He also embezzled $40,000 to pay criminal defense lawyers who represented Romero in a separate case. Romero funneled more than $310,000 to himself by disguising the funds as rent payments on two properties he owned and held under a shell company.

In addition, he stole more than $300,000 in union health plan money to make “salary” payments to his family, even though none of his family members ever worked for the plan. He also used plan funds to pay off a $25,000 loan on his son’s Ford Mustang Shelby GT500 sports car.

Romero also filed a false financial report with the U.S. Department of Labor in which he concealed the existence of more than $100,000 in union receipts and disbursements that Romero held in a secret bank account and from which he made regular payments to his mistress.

Romero advanced his scheme by appointing his son as the secretary and treasurer of the union. He later appointed his ex-wife, Evelyn Romero, 71, as the UISWA president and trustee in 2010, shortly before Romero began serving a two-year federal prison sentence for making false statements to federal officials while he was president of a different labor union. Romero’s son, ex-wife, and daughter, Danae Romero, 42, of Loma Linda, pleaded guilty to criminal charges in this case. Evelyn and Danae Romero each were sentenced to two years’ probation in this case. John J. Romero was sentenced to time served in prison, plus three years of supervised release.

At a September 9 hearing, Judge Phillips ordered this case’s other defendants to pay restitution in the following amounts: Evelyn Romero – $316,502; John J. Romero – $273,350; and Danae Romero – $200,552.

Unapproved Comp Policy Arbitration “Side Agreements” Unenforceable

Adir International, LLC operates the Curacao chain of retail department stores. From 2004 to 2011, Travelers issued a workers’ compensation insurance policy to Adir. The policy was a “guaranteed cost” policy with standard language approved by the Commissioner.

Before issuing the policy to Adir, in accordance with Insurance Code section 11658, Travelers filed the policy with the Workers’ Compensation Insurance Rating Bureau for the Commissioner’s review. The Commissioner did not object to the policy. The policy did not contain an arbitration provision.

As an annual condition for issuing the policy, Adir executed a separate agreement with Travelers that contained the terms and conditions for the Retrospective Rating Plan Endorsement. The annual agreement introduced a requirement for binding arbitration of disputes.

On February 14, 2011, the Commissioner issued a letter to the Rating Bureau requesting it to “notify its member insurers” that the Commissioner “has prohibited the use of collateral agreements, which is synonymous with the term ‘side-agreement,’ concerning workers’ compensation insurance unless they are attached to the policy.” The Commissioner further stated that an insurer’s attempted enforcement of unfiled side agreements could constitute a violation of California law.

When Adir’s coverage expired on July 1, 2012, it did not renew its workers’ compensation insurance with Travelers. Travelers then sought arbitration regarding “the amount of premium currently owing to Travelers by Adir.

On March 13, 2015, Adir filed a complaint in the Los Angeles County Superior Court against Travelers. The Superior Court refused to rule on the validity of the arbitration clause, asserting that the arbitrator was to resolve that issue.

Adir then filed a motion with the arbitration panel, arguing that since the arbitration agreement was not “filed or approved by the Insurance Commissioner,” the agreement was “an illegal agreement and therefore unenforceable.” The arbitration panel denied Adir’s motion to dismiss Travelers’ arbitration claims.

On June 22, 2016, the Commissioner, in a precedential administrative decision (Matter of Shasta Linen Supply, Inc.) ruled that unapproved policy side agreements were illegal.

On July 20, 2017, the arbitration panel issued an interim award of $2,709,280 in favor of Travelers and against Adir. Before the arbitration panel issued a final award, on May 3, 2018, the Fourth District Court of Appeal issued Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018) 22 Cal.App.5th 1096, which held that the trial court, not the arbitrator, should determine the enforceability of the specific arbitration provisions.

On June 18, 2018, under the trial court’s “inherent authority to reconsider its prior rulings,” Adir filed a renewed motion in the Superior Court, seeking to declare the arbitration provision in the agreement “void and unenforceable for illegality.” The trial court granted Adir’s renewed motion on August 23, 2018, declaring the arbitration provisions unenforceable and void.

Travelers appealed, and the Court of Appeal affirmed the finding in the unpublished case of Adir International v. The Travelers Indemnity.

A number of arguments made by Travelers on appeal were rejected, including its argument that the issue was preempted by the Federal Arbitration Act.

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