Tag: 2022 News

Patrick Jamerson filed three applications for inter vivos benefits, two for a continuous trauma with ending dates in 2011 and 2016, and one for a specific injury on May 4, 2016. One of the CT cases was resolved via Stipulations with Request for Award, with the Award issuing September 8, 2014.

He died on September 25, 2018 of suicide. His spouse and children filed an application for death benefits on September 6, 2019. The death benefit application lists all three case numbers. and does not specify the dates of injury for either of the other two case numbers listed. The did not petition to reopen the one case with a Stipulated Award.

The parties proceeded to trial on September 14, 2020. The parties placed in issue whether sections 5406(b) (Proceedings shall not be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury) or 5410 (the five year time limit to petition to reopen a case) barred compensation in all three cases.

The WCJ issued Joint Findings of Fact on October 18, 2020, determining that applicants’ claim for death benefits in Case No. ADJ8129185 (injury through December 1, 2011) was barred under Section 5406(b). But the WCJ further found that defendant failed in its burden of proof to establish that benefits were barred under Section 5406(b) in ADJ11011618 (May 4, 2016 specific injury) and in ADJ11011740 (injury through June 10, 2016). The WCJ further determined section 5410 would not preclude applicant from seeking death benefits.

The employer’s petition for reconsideration was denied in the panel decision of Jamerson v Commercial Metals Co. ADJ11011618; ADJ11011740; ADJ8129185 (March 2022).

Defendant’s contended that the September 6, 2019 application for death benefits was procedurally defective because it listed more than one case number. And applicant’s failure to file three separate applications for death benefits invalidates the filings.

In rejecting this contention, the WCAB Panel noted “that the principles of ‘liberal pleading’ have infused California’s statutory landscape for more than 150 years.”

The Panel went on to discuss statutory provisions enacted in 1872, and proceeded to carefully summarize case law interpreting and implementing the rule that the workers’ compensation system “was intended to afford a simple and nontechnical path to relief.” And that “Informality of pleading in proceedings before the Board is recognized and courts have repeatedly rejected pleading technicalities as grounds for depriving the Board of jurisdiction.”

Moreover the Panel noted that, section 5709 states that “[n]o informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division.” And “it is the policy of the law to favor, whenever possible, a hearing on the merits.”

This Panel decision is an excellent narration of statutory and case law citations supporting forgiveness of technical errors in pleadings by parties who might seek judicial relief from minor technical errors.

Last spring, Lags Medical Centers, a sprawling chain of pain clinics serving more than 20,000 patients in California, abruptly shuttered amid a cloaked state investigation into “credible allegations of fraud.” Tens of thousands of patients were left scrambling for care, most of them low-income Californians covered by state and federal insurance programs. Many have struggled for access to their medical records and to find doctors who would renew long-standing opioid prescriptions.

According to the Los Angeles Times, report, the closures came on the same day that the California Department of Health Care Services suspended state Medi-Cal reimbursements to 17 of Lags Medical’s 28 locations, citing without detail “potential harm to patients” and an ongoing investigation by the state Department of Justice into “credible allegations of fraud.”

In the months since, the state has declined to elaborate on the concerns that prompted its investigation. Patients are still in the dark about what happened with their care and to their bodies.

Even as the government remains largely silent about its investigation, interviews with former Lags Medical patients and employees, as well as Kaiser Health News analyses of reams of Medicare and Medi-Cal billing data and other court and government documents, suggest the clinics operated based on a markedly high-volume and unorthodox approach to pain management. This includes regularly performing skin biopsies that industry experts describe as out of the norm for pain specialists, as well as notably high rates of other sometimes painful procedures, including nerve ablations and high-end urine tests that screen for an extensive list of drugs.

Those procedures generated millions of dollars in insurer payments in recent years for Lags Medical Centers, an affiliated network of clinics under the ownership of Dr. Francis P. Lagattuta. The clinics’ patients primarily were insured by Medicare, the federally funded program for seniors and people with disabilities, or Medi-Cal, California’s Medicaid program for low-income residents.

Taken individually, the fees for each procedure are not eye-popping. But when performed at high volume, they add up to millions of dollars. Take, for example, the punch biopsy, a medical procedure in which a circular blade is used to extract a sample of deep skin tissue the size of a pencil eraser. The technique is commonly used in dermatology to diagnose skin cancer but has limited use in pain management medicine, usually involving a referral to neurologists, according to multiple experts interviewed. These experts said it would be unusual to use the procedure as part of routine pain management.

Lags Medical clinics performed more than 22,000 punch biopsies on Medi-Cal patients from 2016 through 2019, according to state data. Medi-Cal reimbursement rates for punch biopsies changed over time. In 2019 the state’s reimbursement rate was more than $200 for a set of three biopsies performed on patients in fee-for-service plans.

Laboratory analysis of punch biopsies was worth far more. Lags Medical clinics sent biopsies to a Lags-affiliated lab co-located at a clinic in Santa Maria, according to medical records and employee interviews. From 2016 through 2019, Lags Medical clinics and providers performed tens of thousands of pathology services associated with the preparation and examination of tissue samples from Medi-Cal patients, according to state records. The services would have been worth an estimated $3.9 million using Medi-Cal’s average fee-for-service rates during that period.

In that same period, Medicare reimbursed Lagattuta at least $5.7 million for pathology activities using those same billing codes, federal data show.

Much of the work at Lags Medical was performed by a relatively small number of nurse practitioners and physician assistants, each juggling dozens of patients a day with sporadic, often remote supervision by the medical doctors affiliated with the clinics, according to interviews with former employees. Lagattuta himself lived in Florida for more than a year while serving as medical director, according to testimony he provided as part of an ongoing malpractice lawsuit that names Lagattuta, Lags Medical, and a former employee as defendants.

A lawsuit, filed in Fresno County Superior Court, accuses a Lags Medical provider in Fresno of puncturing a patient’s lung during a botched injection for back pain. Lagattuta and the other named defendants have denied the incident was due to negligent treatment, saying, in part, the patient consented to the procedure knowing it carried risks.

Former employees said they were given bonuses if they treated more than 32 patients in a day, a strategy Lagattuta confirmed in his deposition in the malpractice lawsuit. “If they saw over, like, 32 patients, they would get, like, $10 a patient,” Lagattuta testified.

A federal workplace safety investigation found that a 34-year-old worker’s fatal fall might have been prevented had the operator of a Pauma Valley zip-line attraction implemented required safety measures.

ABC 10 News of San Diego reported that Joaquin Romero, 34, of Banning, Calif., died of multiple blunt force trauma injuries after he fell from a receiving platform of a zip line while trying to help a rider. The incident occurred at the Zip Zoom Zipline located on the La Jolla Indian Reservation, according to the La Jolla Band Of Luiseno Indians.

According to Fox 5, a witness said Romero was helping a woman get hooked on the platform when she started sliding out on the line. He couldn’t stop her and grabbed onto her harness, which caused them both to slide out about a hundred feet above the ground, according to the witness.

The friend said Romero feared the woman could fall because of the weight, so he made a heroic decision to let go. According to the witness, the woman was not injured.

Cal Fire crews hoisted Romero up in a rescue basket, and he was airlifted to Sharp Memorial Hospital. The county medical examiner said Romero arrived without a pulse. After admission to the hospital, a poor prognosis was given by medical staff and Romero’s family decided to place him on comfort care measures until he was pronounced dead, the ME added.

The zip line course had billed itself as the longest of its kind in Southern California, with lines running across canyons, valleys, treetops and the San Luis Rey River. The three zipline courses at the attraction range from 300 to 2,700 feet in length and reach speeds up to 55 miles per hour. It opened in 2015.

A U.S. Department of Labor Occupational Safety and Health Administration investigation inspectors found La Jolla Zip Zoom Ziplines failed to install a guardrail, safety net or personal fall arrest system. The company also did not train employees on fall hazards and how to recognize them, as required. Additionally, OSHA determined that the company failed to assess the workplace to determine the presence of hazards and did not report a work-related hospitalization within 24 hours.

OSHA cited the company for four serious safety violations and proposed $24,861 in penalties. La Jolla Zip Zoom Ziplines is also accused of failing to train employees about fall hazards and failing to assess the workplace for hazards.

OSHA Area Director Derek Engard said,”La Jolla Zip Zoom Ziplines failed to meet their obligation to protect their employees,” OSHA Area Director Derek Engard in San Diego. “If they had simply provided the proper protective equipment, this senseless tragedy could have been prevented.”

The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

CorVel Corporation presented its Critical Incident Stress Debriefing program, highlighting positive outcomes with the City of Beverly Hills, at the annual Public Agency Risk Management Association (PARMA) meeting on March 1, 2022, in Anaheim, California.

Critical incident stress debriefing has been around for many years. However, it has recently re-emerged as a tool for employers facing several challenges in our current climate.

Originally designed for responders to traumatic events, critical incident stress debriefing (CISD) is a structured, brief intervention provided in a small group setting immediately following a crisis. It’s designed to help people process the event to minimize symptoms of traumatic stress, depression, and anxiety. Critical incident debriefing typically consists of seven stages, and altogether, it lasts approximately three hours or less.

“Critical incident” is another term for a traumatic event. It includes any occurrence faced by public safety responders, emergency workers, and related personnel that causes distress and disruption to typical psychological or physiological functioning. Critical incidents often involve death or extreme threats to safety, life, and well-being.

It was developed in 1974 by Dr. Jeffrey Mitchell, a former firefighter and paramedic, as one component of a broader critical incident stress management (CISM) program.

During the presentation, Tyla A. DiMaria, RN, Case Management Manager for CorVel, discussed the company’s patient-centered approach that helps employees who have witnessed a catastrophic or traumatic event process the situation, work through the hurdles and develop coping mechanisms to return to work as quickly as possible.

“These past two years have put a spotlight on mental health, as people have been dealing with the stresses of illness, death, civil unrest, isolation and so many other difficult situations,” DiMaria said. “We’ve seen a significant increase in depression, anxiety, crippling fear and other mental health issues, especially for essential workers, and these challenges must be addressed and not ignored.”

Last year, CorVel’s program was expanded to address COVID-19 traumatic stress – a syndrome developing due to the significant mental health challenges associated with the pandemic.

During the presentation, DiMaria outlined how the City of Beverly Hills partnered with CorVel to implement a critical incident and COVID-19 traumatic stress debriefing program for city employees, improving return to work and positively impacting overall costs and outcomes.

“We are very proud of our expanded Critical Incident Stress Debriefing program, which places emphasis on the injured worker and their overall wellbeing,” said Karen Thomas, Vice President, Clinical Solutions at CorVel.

“At CorVel, we take a patient-centered approach to claims management to ensure that the injured worker feels supported throughout the process, regardless of the type of illness or injury. By taking a proactive approach to mental health, we can improve outcomes and reduce costs for customers while increasing satisfaction and care for injured workers.”

A new 253 page report describes work undertaken by the RAND Corporation for the California Commission on Health and Safety and Workers’ Compensation (CHSWC) in the Department of Industrial Relations (DIR).  The goal of this study is three-fold:

(1) evaluate the overall impacts of COVID- 19 claims on California’s workers’ compensation system,
(2) evaluate the overall impacts of COVID-19 claims on California’s workers’ compensation indemnity benefits, medical benefits, and death benefits, including differences in the impacts across differing occupational groups, and
(3) assess the overall and cost impacts of the frontline worker and outbreak presumptions created by Senate Bill (SB) 1159 on California workers’ compensation system.

Senate Bill 1159, which was signed into law on September 17, codified this temporary presumption and introduced distinct presumptions for two groups of workers who fell ill with COVID-19 on July 6, 2020 or later:

– – Labor Code section 3212.87 covers specified health-care workers and workers in specified health care facilities, active firefighters, and peace officers primarily engaged in active law enforcement. We refer to this presumption as the frontline presumption.
– – Labor Code section 3212.88 covers workers not covered by the frontline presumption who tested positive for COVID-19 while working outside the home during an outbreak period at their job site. We refer to this presumption as the outbreak presumption.

These presumptions, which remain in effect until January 1, 2023, apply to workers meeting these criteria who test positive for COVID-19 using a polymerase chain reaction (PCR) test.

RAND conducted a mixed-methods study analyzing claims outcomes overall and by industry and occupation from the Workers’ Compensation Information System (WCIS) between January 2020 and June 2021.COVID-19 accounted for over 20 percent of claims in June and July of 2020 and peaked at 55 percent of claims in December 2020. Applicants filed a total of 82,000 claims filed for December 2020 injury dates. In comparison, in the decade before the pandemic (2010 to 2019), there had never been more than 68,000 claims filed in a single month.

During the first wave of the pandemic, the volume of non-COVID-19 claims dropped sharply following the statewide stay-at-home order, and so total claim volumes dropped early in the pandemic and were 25 percent lower than the volume typical before the pandemic during the temporary presumption period. Total claim volumes in most months since July 202 have remained below pre-pandemic levels.

COVID-19 claims are denied much more often than non-COVID-19 claims. Depending on the time period, denial rates on COVID-19 claims across all occupations have ranged from 44 percent for claims filed before any presumptions were in effect, 26 percent during the temporary presumption, and 34 percent after the outbreak and frontline presumptions took effect. Denial rates on non-COVID-19 claims filed at these times were 13 percent, 14 percent, and 10 percent, respectively. Denial rates varied widely across workers covered by different presumptions and, within groups of workers covered by the same presumption, across industries and occupations.

The main factor influencing whether a worker filed a claim was having access to federal and state COVID-19 paid leave. Workers then decided to file a workers’ compensation claim when their need for time off exceeded the time available from these other federal and state paid leave programs. Workers were able to access medical care for COVID-19 without using workers’ compensation, suggesting that workers’ compensation medical care benefits for COVID-19 were not critical to helping most workers receive needed care.

Overall, its study uncovered several challenges with the functioning of the workers’ compensation system during the pandemic. For employers, these challenges primarily related to handling a large, fluctuating volume of claims within shortened claim administration timeframes for making an initial claim decision.

For workers, confusion around filing a COVID-19 claim presented challenges, including questions about what occupations were covered and qualified for workers’ compensation under the presumption and whether a positive COVID-19 test was needed. In the face of these challenges, we consider how the specific aspects of the presumptions identified by SB 1159 impacted workers and employers within the workers’ compensation system.