Editor in Chief

Bernadette M. O'Brien is an attorney at law in California.

She is the author of the popular Lexis Nexis publication Labor and Employment in California; A guide to Employment Laws, Regulations and Practices Second Edition which has been in publication since 1992. The book covers an array of employment related issues including discrimination, sexual harassment, wage and hour, family Medical Leave Act, and Privacy in the workplace.

She is of counsel with the Law Offices of Floyd, Skeren & Kelly, LLP in the firm's Sacramento office.

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Rene Thomas Folse, JD, Ph.D. is an attorney at law and licensed psychologist in California.

He has practiced workers' compensation law for 35 years. His focus of practice involves claims of mental health injury where forensic psychology is involved in the evaluation of the claim. He has been an instructor and lecturer for many organizations and educational institutions and teches continuing education courses for attorneys, physicians and psychologists.

Recent Workers' Compensation News for Jul 27, 2015

Costa Mesa Cop Charged With Comp Fraud
Mon, 27 Jul 2015 08:25:51 - Pacific Time
A criminal complaint has been filed by the Orange County District attorney against a Costa Mesa Police Department (CMPD) officer for allegedly committing insurance fraud by presenting a false insurance claim and making false material statements related to the claim.

Ryan Patrick Natividad, 30, Corona, is charged with one felony count of insurance fraud and one felony count of making a fraudulent statement. If convicted, Natividad faces a maximum sentence of six years in jail. He was expected to be arraigned last Friday in Department C-55, Central Justice Center, Santa Ana.

On Sept. 23, 2014, Natividad is accused of reporting a work-related injury to his employer CMPD. Natividad is accused of falsely claiming earlier in the day, he had struck his fist against a wall when attempting to prevent an arrestee from stumbling into the wall while escorting the arrestee from the patrol vehicle into jail. Natividad is accused of filing a fraudulent workers’ compensation claim. He was subsequently directed by CMPD to seek immediate medical attention.

The City of Costa Mesa internally investigated Natividad’s workers’ compensation claim and uncovered evidence contradicting Natividad’s account of how and when the injury occurred.

Deputy District Attorney Noor Hasan of the Insurance Fraud Unit is prosecuting this case. Read More...

Another Big Merger - Anthem Buys Cigna for $48 Billion
Mon, 27 Jul 2015 08:25:43 - Pacific Time
Two more of the nation’s biggest health insurers are moving to merge, raising the possibility of a potential fight with antitrust regulators. Anthem said on Friday that it had agreed to buy Cigna for $48.3 billion, finally striking a deal after a nearly yearlong pursuit. Buying its rival, Anthem intends to create a new giant in the sector, gaining greater scale and considerably cutting costs.

But the proposed transaction, coming three weeks after Aetna said it would to buy Humana for $37 billion, could shrink the number of major companies in the health insurance industry from five to just three. And that could mean fewer options and higher rates for consumers and the employers that provide health insurance.

The question now is whether government officials will allow that level of consolidation to pass. The United States Department of Justice and the Federal Trade Commission have become more assertive about challenging merger combinations in recent years, analysts and industry experts have noted.

Together, Anthem, which runs Blue Cross plans in 14 states, and Cigna, which offers insurance plans through employers, would have around $115 billion in revenue. Cigna also has 24 million behavioral health customers, nearly 14 million dental care members, eight million pharmacy benefit plan members and 1.5 million Medicare Part D pharmacy customers.

Peter V. Lee, the executive director of California’s health benefit exchange, said the mergers of health plans could counterbalance the growing power of health care providers. "I am far more concerned about the consolidation of hospital and physician groups than the consolidation of health plans," Mr. Lee said. Read More...

WCAB "Insouciant" Deferral of PERS Issue in Death Case Reversed
Fri, 24 Jul 2015 08:40:48 - Pacific Time
In 2011 Gregory Thompson, was working at High Desert State Prison as a guard. An inmate stabbed him eight times. He was awarded workers compensation benefits. As a result of his injuries, he accepted a medical demotion to an entry-level computer analyst position in the information technology department of the prison’s medical unit, forfeiting his peace officer status. He had a troubled relationship with his supervisor, who told him he was not passing probation.

In March 2013, he committed suicide by means of a self-inflicted gunshot wound. The widow filed her application for workers’ compensation death benefits in April 2013. The Department did not contest the finding that the death of Gregory Thompson was causally related to the industrial injury.

In August 2013, she petitioned for a finding of fact pursuant to GC 21537 that the death was industrial, qualifying her for a PERS special death benefit for peace officers. Labor Code section 4708 expressly provides that the PERS Board "shall be joined as a defendant, and the [WCAB] shall determine whether the death resulted from injury.A surviving dependent is precluded from seeking the workers’ compensation death benefit in lieu of the PERS special death benefit. (Gov. Code, § 21542). Nevertheless, the WCJ never joined the PERS Board as a defendant.

At the conclusion of the WCAB trial, the widow testified she was indeed receiving PERS death benefits. Yet the decision did not include any findings on the petition for finding of fact pursuant to section 21537. It simply awarded a workers’ compensation death benefit of $250,000 and set legal fees at $30,000. The employer's petition for reconsideration was denied with the WCAB simply saying the PERS issue "is not before us on reconsideration. CalPERS will determine the issue of any duplicate payments."

The Court of Appeal had a difficult time determining from the WCAB record exactly what happened to the PERS issue. It nonetheless reversed in the published opinion of Department of Corrections and Rehabilitation v WCAB (Thompson).

The Court of Appeal concluded "These statutory directives would seem to be straightforward. Indeed, we have not found a case, treatise, or encyclopedia on this issue that suggests there is any alternative procedure to the two boards making a joint calculation of workers’ compensation and PERS death benefits in a single proceeding after the WCAB resolves the issue of industrial causation for a death."

"As a result of the WCAB’s insouciant deferral of the computation issue to the PERS Board, its order awarding the full workers’ compensation death benefit to the widow - without crediting the PERS special death benefit against it - is accordingly unauthorized under Labor Code section 4707 and cannot stand." Read More...

Jury Convicts Security Officer for Faking Claim
Fri, 24 Jul 2015 08:40:42 - Pacific Time
An Oroville man faces up to five years in prison after he was convicted on charges of workers’ compensation fraud.

Howard William Neel, 59, was convicted by a jury in Butte County Superior Court Tuesday on five felony counts of workers’ compensation fraud stemming from an incident in 2009, according to a press release issued by the Butte County District Attorney’s Office.

On Dec. 12, 2009, Neel was working for an area security company and putting gas in his company-assigned Ford Crown Victoria when another vehicle slightly backed into the car. Neel claimed he was knocked down in the incident and suffered back, neck and leg pain. He was subsequently taken off work.

Surveillance footage of the incident revealed that Neel was not knocked down and showed him walking normally, only beginning to limp when he was seen by the other person involved in the fender-bender.

"Neel was seen by a variety of doctors during the course of his treatment under his employer’s workers’ compensation insurance and he repeatedly denied any back, neck or leg injuries prior to the December 2009 ‘accident’," according to the release. "However, an investigation later determined he had suffered the same type of back injury he was now claiming while lifting boxes 10 years prior, which was also treated under the workers’ compensation system."

Prosecutors also showed that when Neel returned to work Dec. 30, 2009, he claimed to be injured after slipping to his knees after walking over a wet planter, according to the release. He later reported to a workers’ compensation doctor that he fell on his back and shoulder. Photos taken on the day of the slip and fall allegedly showed otherwise. They showed mud on Neel’s trousers but not on his back or shoulder.

Neel also reportedly used a cane when he visited doctors, but undercover surveillance showed that he didn’t use a cane when he worked around his house or with his horses.

Neel is scheduled to be sentenced Sept. 24, and he also faces between $100,000 and $200,000 in restitution. Read More...

DEA Illegally Pays Millions in Comp Benefits to Informants
Thu, 23 Jul 2015 06:21:53 - Pacific Time
The Department of Justice Office of the Inspector General is conducting an audit of the Drug Enforcement Administration’s Confidential Source Program. The OIG initiated the audit as a result of the OIG’s receipt of numerous allegations regarding the DEA’s handling and use of confidential sources. Its audit work thus far has been seriously delayed by numerous instances of uncooperativeness from the DEA. Nevertheless, it has uncovered several significant issues.

Among other matters, the audit learned that the DEA was providing Federal Employees’ Compensation Act (FECA) benefits to confidential informants, yet had not established a process or any controls regarding the awarding of them. The DEA lacked a process for thoroughly reviewing FECA claims for confidential sources or determining eligibility for these benefits. In addition, the DEA did not oversee and ensure that the established pay rate for these sources was proper and inappropriately continued using and paying confidential sources who were also receiving full disability payments through FECA.

In one case, the Inspector General wrote, the DEA paid out more than $1.3 million between 1989 and 2012 to the widow of a killed informant. Payments have been ongoing in other cases since 1974.

In addition, the Inspector General says there is no legal basis for extending compensation benefits intended for federal employees to confidential informants. The law cited by the DEA as justification for the payments, the Inspector General wrote, "does not provide a legal basis for the DEA’s position that its confidential sources were appropriately categorized as non-federal law enforcement officers eligible for FECA benefits."

In a statement, a Justice Department spokesperson said the DEA "has placed a moratorium on submitting new FECA claims for confidential sources to the Department of Labor." "DEA has also determined that, although a determination should be based on the facts of each individual case, the presumption should be confidential sources are not ‘employees’ pursuant to FECA and should not be eligible for benefits," the spokesperson said. Read More...

Researcher Seek "Synthetic" Cannabis Pain Relief Without Euphoric High
Thu, 23 Jul 2015 06:21:46 - Pacific Time
Researchers from both the University of East Anglia (UEA), in the UK and University of Pompeu Fabra in Barcelona, Spain, carried out research on mice and discovered how the main psychoactive ingredient in cannabis can be blocked, while several beneficial effects, including pain relief remain. The latest findings have been published in the journal PLOS Biology, It is hoped the new findings can aid the development of cannabis for medical use, without the risk of its unwanted side effects.

The latest study will add further weight to an already highly contested topic. The potential beneficial medical effects and dangers of cannabis use has rarely strayed from the public's eye. Twenty-three US States and the District of Columbia have already passed legislation allowing the use of cannabis for medical use.

Furthermore, Oregon has recently become the fourth US State, after Alaska, Colorado and Washington, to legalize the drug for recreational use, and studies are increasingly delving further into the full effects of the drug.

Dr. Peter McCormick from UEA's School of Pharmacy, stated this research is important for future development of treatment as it identifies THC's unwanted side effects while maintaining pain reduction. However, Dr. McCormick was quick to warn of the dangers of individuals self-medicating, but stated he hopes the research would lead to a "safe synthetic equivalent being available in the future." Read More...

UCLA Health Computers Hacked
Wed, 22 Jul 2015 08:25:34 - Pacific Time
Hospitals, health insurance companies, and universities have all become a frequent target for hackers seeking massive databases of personal information. Profile data, Social Security numbers and health records sell quickly on the black market and are now more profitable in that marketplace than is credit card information. Illegal data brokers amass large databases of this stolen information, then sell access to identity thieves.

An now hackers reportedly broke into the massive hospital network of the University of California, Los Angeles, accessing computers with sensitive records of 4.5 million people. According to the story on Fox2Now, names, medical information, Social Security numbers, Medicare numbers, health plan IDs, birthdays and physical addresses - all were potentially stolen. That could affect anyone who has visited - or works - at the university’s medical network, UCLA Health, which includes four hospitals and 150 offices across Southern California. UCLA Health made this announcement on Friday - two months after it discovered the extent of the data breach.

Evidence collected by UCLA Health indicates hackers slipped into computers in September 2014. The next month, university network alarms "detected suspicious activity," and UCLA Health called in the FBI for help. "At that time, it did not appear that the attackers had gained access to the parts of the network that contain personal and medical information," UCLA Health said in a statement.

That changed on May 5, when UCLA claims it discovered hackers actually accessed computers with sensitive records. The hospital group is now notifying staff and patients, offering them one year of identity theft recovery services. However, UCLA Health stresses it can’t yet be sure that hackers actually accessed - or stole - the records themselves. The FBI is currently trying to determine "the nature and scope" of the incident.

The UCLA Hospital System’s president, Dr. James Atkinson, apologized to the public in a statement. The hospital group also noted it is under "near-constant attack" by hackers - blocking "millions of known hacker attempts each year." UCLA Health said the hack forced it to employ more cybersecurity experts on its internal security team, and to hire an outside cybersecurity firm to guard its network.

Health care tends to lose larger numbers of records. When insurance giant Anthem was hacked, up to 80 million records were stolen. The Premera health insurance hack hit 11 million people. Hackers also stole data on 4.5 million Community Health System patients.

Universities get slammed as well. Last year, hackers stole 310,000 University of Maryland records. This year, Auburn University exposed its students’ Social Security numbers. North Dakota University, Butler University, and Indiana University have all exposed the private information of hundreds of thousands of students. Read More...

Colorado Says No! to Cannabis for PTSD
Wed, 22 Jul 2015 08:25:27 - Pacific Time
The workers compensation community is watching the battle between cannabis advocacy groups and third party payment systems expecting at some point cannabis will be required to treat industrial injuries nationwide. But surprisingly, Colorado health officials recently rejected a bid by medical marijuana advocates to put cannabis on a list of approved treatments for post-traumatic stress disorder.

While Colorado has allowed the use of medical marijuana to treat various ailments since 2001, the state's health board has three times refused to put PTSD on its approved list. A similar proposal failed in the state legislature last year. According to the story on Reuters Health, the spokesman, Mark Salley, said the Colorado Board of Health voted 6-2 to reject a petition for PTSD to be included as a "debilitating condition" that can be treated with medical pot.

"In my opinion, the board sent a message to patients that they just don’t matter," said Teri Robnett, director of the Cannabis Patients Alliance and member of a board advisory panel that recommended the inclusion of PTSD. "We have 22 veterans a day across the country committing suicide," said Robnett, adding that the board ignored testimony from PTSD sufferers, among them several military combat veterans saying their lives had improved since using the drug.

Nine states allow physicians to recommend medical marijuana for PTSD patients. Having PTSD listed as a condition treatable with medical marijuana would allow physicians to recommend strains that provide relief without the drug’s psychoactive properties, and allow for improved tracking of its efficacy, Robnett added.

John Evans, a spokesman for Veterans For Freedoms, which lobbies for medical pot use to treat PTSD symptoms, said the board cited insufficient medical evidence that cannabis helps those afflicted with the mental-health condition. "The irony is that the members that voted against us stated a lack of scientific research and data, and just voted against collecting such data," Evans, a U.S Navy veteran, said in a statement.

On its website, the health board says medical marijuana may be recommended for sufferers of cancer, glaucoma, cancer and HIV/AIDS. It also says cannabis may be recommended for people who have "a chronic or debilitating disease" that produces persistent muscle spasms, extreme weight loss, severe pain and nausea or seizures. Read More...

DWC Ends Paper QME Panel Requests on September 3
Tue, 21 Jul 2015 08:26:17 - Pacific Time
The DWC will implement a new online panel process for represented initial panel requests on October 1, 2015. DWC will no longer accept or process paper submissions postmarked after September 3, 2015. The new process requires parties in a represented case to submit initial QME panel requests online and immediately receive a QME panel. The requesting party will then serve the panel request form, any required documentation and the QME panel on all parties with a proof of service.

"Our goal for the new online process is to further reduce delays. In most cases the QME panel will issue immediately, allowing the injured worker to schedule an exam with a QME more quickly," said Christine Baker, Director of the Department of Industrial Relations (DIR). DWC is a division of DIR.

The DWC has posted an online QME Form 106 Panel Request training video and FAQs on the Medical Unit website. The video demonstration details the way in which represented initial panel requests will be submitted using the new online system.

"I encourage attorneys and claims administrators to view the training video to see how easy the new system will be to use and to become familiar with the process before October 1, 2015," said Destie Overpeck, Administrative Director of DWC.

The notices of rulemaking, text of the regulations, and the initial statements of reasons can be found at on the DWC rulemaking page. The regulations are pending final review with the Office of Administrative Law (OAL).

Continuous updates about the division’s activities are available by subscribing to the DWC Newsline. QME specific information, which includes new training materials, is also available on the DWC Medical Unit website. Read More...

Tujunga Man Gets 15 Years For Prescription Drug Conspiracy
Tue, 21 Jul 2015 08:26:12 - Pacific Time
33 year old Artak Ovsepian, a Tujunga man who was one of the leaders of a prescription drug conspiracy that used a sham Glendale medical clinic has been sentenced to 15 years in federal prison. At the sentencing, U.S. District Judge S. James Otero called Ovsepian’s actions "despicable" and "horrific" and said that the scheme "preyed on some of those most vulnerable members of society, from the mentally ill, to down-and-out veterans, to elderly victims whose identities were stolen, which then interfered with their ability to obtain medical treatment that they truly needed,"

Ovsepian oversaw the acquisition of expensive anti-psychotic drugs with bogus prescriptions and then re-billing the government for the medications over and over, said the U.S. Attorney’s Office in Los Angeles. He is among 16 people who have been convicted in relation to the scheme run out of Manor Medical Imaging in Glendale. The investigation was called "Operation Psyched Out." The government called it the first in the nation involving an organized scheme to defraud government health care programs through fraudulent claims for expensive anti-psychotic medications.

Operators of Manor Medical Imaging employed an unlicensed medical practitioner, Nuritsa Grigoryan, of Glendale, to prescribe "expensive" anti-psychotic medications using a licensed doctor’s name, and later billed and rebilled the government for the drugs, according to a statement from the U.S. Attorney’s Office. After the prescriptions were filled, the drugs were sold on the black market and redistributed to pharmacies, where they’d be used in new claims filed to Medicare and Medi-Cal.

Two others, including physician Kenneth Johnson, 48, of Ladera Heights, and Nuritsa Grigoryan, 49, of Glendale, were also convicted after last year’s trial, and about a dozen others have been convicted in relation to the scheme. Johnson, the doctor who pre-signed thousands of blank prescriptions that were later filled out by co-conspirators, is slated to be sentenced in November. Grigoryan reportedly fled the country after her conviction and remains a fugitive. Previously, Lianna "Lili" Ovsepian, 34, of Tujunga, another leader of the ring and manager and owner of Manor, was sentenced to eight years in prison after pleading guilty to health care fraud charges.

Other defendants who were charged in this case include a Pasadena couple whose Huntington Pharmacy in San Marino saw its business grow dramatically due its affiliation with Manor Medical. The owner of the pharmacy, Phic Lim, is scheduled for trial in this case in on September 29, 2015. His wife, Theana Khou, previously pleaded guilty as part of a joint resolution with another case filed against her and her husband. Read More...

Past Week News Archive

DWC Gets Tougher On Opoids In Proposed Guideline: Mon, 20 Jul 2015 10:01:05 - Pacific Time: Read More...

DWC Posts New Regs on ICD-10 Transition: Mon, 20 Jul 2015 10:01:00 - Pacific Time: Read More...

Cheerleaders Cheer Over New Labor Law: Fri, 17 Jul 2015 08:19:35 - Pacific Time: Read More...

Fear of Being Fired Adversely Effects Claim Outcomes: Fri, 17 Jul 2015 08:19:30 - Pacific Time: Read More...

Businesses Install Surveillance Cameras to Catch Comp Fraud: Thu, 16 Jul 2015 08:33:44 - Pacific Time: Read More...

Cal/OSHA Fines Petaluma Employer for Fatality: Thu, 16 Jul 2015 08:33:39 - Pacific Time: Read More...

Excess Carrier Not Bound by WCAB Decision: Wed, 15 Jul 2015 08:09:01 - Pacific Time: Read More...

National Safety Council Targets Workplace Opoid Abuse: Wed, 15 Jul 2015 08:08:54 - Pacific Time: Read More...

FDA Strengthens NSAID Label Warning: Tue, 14 Jul 2015 07:30:29 - Pacific Time: Read More...

Feds Want More Pills - Faster: Tue, 14 Jul 2015 07:30:22 - Pacific Time: Read More...