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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 Apr 16, 2014

Cal/OSHA Fines Real Estate Firm for Tree Trimming Fatality
Wed, 16 Apr 2014 11:37:00 - Pacific Time
State regulators have cited a La Mesa real estate firm with $91,865 in penalties following a workplace tree-trimming accident that killed an employee on Nov. 12, 2013. Joshua Alan Pudsey, 42, was in the bucket of a boom lift when he was struck by a 25-foot branch that fell from a 60-foot-tall eucalyptus tree at a home at 4450 Date Ave. in La Mesa. The property was owned by Three Frogs, Inc., which buys, renovates and resells residential property, according to an investigation by California's Division of Occupational Safety and Health, also known as Cal/OSHA. Pudsey was a general construction laborer who had been working for the company for three months before the accident, and he did not have the training or experience needed to safely trim a tree of that size, Cal/OSHA found.

State law requires employers to hire qualified tree workers to direct all work on trees taller than 15 feet. Pudsey and other workers on the job were not trained to use the 80-foot aerial lift they used to cut the tree, nor were they provided with eye protection or harnesses to protect them from falls while working on the lift, the Cal/OSHA investigation found.

Three Frogs owner Scot Wolfe said his firm was cooperating with state regulators. "OSHA's just doing their job," Wolfe said. "We don't fault them for doing their job at all." Wolfe declined to answer other questions about his company but did offer condolences to Pudsey's family. "A man died on the job," Wolfe said. "Our hearts go out to his family, obviously."

Altogether, Cal/OSHA has issued 13 citations against Three Frogs, including eight serious citations. (A violation is considered serious when it could directly result in death or serious physical harm.) Five of the serious citations were related to the accident and the company's violation of the tree removal standard, such as the company failure to maintain an Injury and Illness Prevention Plan or a written Heat Illness Prevention Program, according to Cal/OSHA. "When safety takes a backseat to the bottom line, tragedies such as this one will result," said acting Cal/OSHA Chief Juliann Sum in a press release. "Companies that cut corners by not abiding by workplace safety regulations put their employees at direct risk of numerous hazards."

The state Division of Labor Standards Enforcement ordered the company to stop work on Nov. 13 after the state Labor Commissioner found the company failed to provide worker's compensation coverage for its employees. The stop order will remain in place until Three Frogs demonstrates that a workers' comp policy is in effect, regulators said. The investigation into labor practices is ongoing, and regulators also have an ongoing criminal investigation.

Security Firm Head - Heads to Jail for 120 Days
Wed, 16 Apr 2014 11:36:53 - Pacific Time
The head of a private security firm once charged with monitoring Oldtown Salinas was sentenced to five years’ probation and 120 days in jail, according to the Monterey County District Attorney’s Office. Anthony Vincent Perez, a.k.a. Tony Vincent, was arrested in April 2013 on nine charges related to business, insurance and tax fraud and evasion. In February, he pleaded no contest to two felonies and a misdemeanor in the case.

Local prosecutors said they were tipped off in December 2012 that Perez was paying his employees in cash and operating without workers’ compensation insurance. The investigation revealed Perez hadn’t registered with nor reported employee wages to the Employment Development Division since 2006, when he went into business, prosecutors said. Perez further misclassified his guards as independent contractors rather than employees as required by the Bureau of Security and Investigative Services and provisions regulating Private Patrol Operators, prosecutors said.

During the investigation, Perez obtained workers’ compensation insurance through the State Compensation Insurance Fund by making material misrepresentations to obtain a lower premium, prosecutors said.

DA Investigator Martin Sanchez, California Department of Insurance Detective Stuart Rind and Bureau of Security and Investigative Services Investigator Laura Jestes teamed up to investigate the case.

Perez was placed on five years’ felony probation. He was also ordered to serve 120 days in the Monterey County Jail, to complete 200 hours of community service and pay $18,000 fines.

Restitution will be determined May 15.

DWC Posts Proposed Opioid Guideline - Three Steps Forward, Two Steps Back
Tue, 15 Apr 2014 12:40:27 - Pacific Time
The Division of Workers’ Compensation (DWC) has posted a proposed "Guideline for the Use of Opioids to Treat Work-Related Injuries" to its online forum. Members of the public may review and comment on the proposal until April 21, 2014.

"Opioid misuse is a national concern. California is on the forefront of providing appropriate care and improving outcomes by issuing these guidelines," said Department of Industrial Relations Director Christine Baker.

Currently, the Medical Treatment Utilization Schedule (MTUS) addresses the use of opioids in the Chronic Pain Medical Treatment Guidelines. DWC intends to remove the existing parts of the MTUS that refer to opioid use and instead revise the MTUS to include this proposed guideline. "We created separate guidance for the use of opioids in the California workers’ compensation system to highlight the importance of appropriately treating workers in pain while also ensuring safety when using these medications," said DWC Executive Medical Director Dr. Rupali Das. "A key goal of this guideline is to ensure restoration of function and early return to work following an injury."

The proposed "Guideline for the Use of Opioids to Treat Work-Related Injuries" was developed in cooperation with the multidisciplinary Medical Evidence Evaluation Advisory Committee (MEEAC). The recommendations are derived from the best available evidence-based guidelines and scientific studies. The proposed guideline provides a set of best practices for considering opioids in the management of acute, subacute, post-operative, and chronic pain related to work-related injuries. Recommendations include when it is appropriate to consider adding opioids to the treatment regimen; medications to avoid when using opioids; methods and tools to monitor patients on opioids; the need to educate patients about the adverse effects of opioid use; and responsible storage and disposal of opioids. In addition, useful tools and resources for patient management are provided. The guideline is divided into four parts: Part A, a summary, abbreviated treatment protocols, and introduction; Part B, complete recommendations, and appendices containing useful tools; Part C, findings to support the recommendations; and Part D, a compilation of recommendations from a review of existing guidelines.

The Guideline is comprehensive. Part B is 104 pages. A number of provisions are a "step forward" from our current MTUS provisions. For example, one of the new concepts of the guideline states "If opioids are prescribed, the Controlled Substance Utilization Review and Evaluation System (CURES), California’s Prescription Drug Monitoring Program should be accessed. If CURES indicates the simultaneous use of other narcotic medication, opioid use may be contraindicated."

Use of the CURES database to determine if a patient is abusing opioid medication or not providing an accurate history is well intentioned. Use of drug databases are becoming the national standard, and a well accepted tool to curb some abuse. However, the proposed Guideline uses the term "should" throughout the document which waters down the proposed regulation. In this regard the Guideline takes two steps backward. The term "should" means a person is "encouraged" to do something while "must" and "shall" mean they are required to do it. The main use of should in modern English is as a synonym of ought to, expressing quasi-obligation, appropriateness, or expectation. When used in statutes, contracts, or the like, the word "shall" is generally imperative or mandatory. Hence, a medical practitioner is not required to follow many of the provisions of the new Guideline, and can simply avoid any regulatory language preceded by the term "should."

The MTUS regulations can be found in Title 8 of the California Code of Regulations, beginning with section 9792.20. The proposed guidelines will be in a new section, 9792.24.4. The forum can be found online on the DWC forums web page. Read More...

Owner of Van Nuys Medical Supply Company Gets Six Years in Prison
Tue, 15 Apr 2014 12:40:20 - Pacific Time
A North Hollywood woman who pleaded guilty in January to health care fraud was sentenced Monday to six years in federal prison and ordered to pay nearly $10 million restitution to Uncle Sam.

Susanna Artsruni, 46, whose Midvalley Medical Supply of Van Nuys had submitted nearly $25 million in bogus bills to Medicare, was sentenced by U.S. District Judge Margaret M. Morrow, according to the U.S. Attorney’s Office. Artsruni, who also used the names "Mary" and "Rose,"worked at a number of medical clinics in Los Angeles.

She was sentenced after pleading guilty earlier this year to one count of health care fraud and one count of money laundering. She was ordered to serve 76 months in prison and to pay $9,624,556 in restitution to Medicare.

In her plea agreement, Artsruni admitted to billing Medicare for services and supplies that were medically unnecessary and sometimes never provided. The scheme involved physician’s assistants at three Los Angeles medical clinics who signed prescriptions and orders for unnecessary tests, services and equipment. She also admitted to writing checks of more than $35,000 from the Midvalley bank account to three corporations that had no connection to the medical industry and apparently had not provided any legitimate business services to her company. The checks, she admitted, were meant to launder funds related to the welfare fraud. At the time, Artsruni was free on bond in another health care fraud case whose terms ordered her not to work at any medical facility.

A second defendant in the case, Erasmus Kotey, a physician’s assistant, has pleaded guilty and is scheduled to be sentenced Sept. 8, according to the U.S. Attorney’s Office. Charges have been filed to three others allegedly associated with the money laundering, who have pleaded not guilty for a trial expected early next year Read More...

Claimant Arrested for Working as Massage Therapist While on Comp
Mon, 14 Apr 2014 12:49:34 - Pacific Time
Wayne Lu, 53 of Torrance is in custody on charges of alleged workers' compensation fraud associated with an injury received during his employment with the U.S. Postal Service. Detectives from the California Department of Insurance, with the assistance of U.S. Postal Inspectors, arrested Lu on Tuesday, April 8 in Manhattan Beach.

"Workers' compensation fraud is not a victimless crime," said Insurance Commissioner Dave Jones. "Fraudulent claims inflate premiums for all consumers and cast unnecessary doubt on workers that are truly injured and deserve timely treatment and rehabilitation."

California Department of Insurance Detectives and United States Postal Service Office of Inspector General Special Agents conducted a joint investigation and learned that Lu was working as a massage therapist despite his claims of shoulder injury. Surveillance and undercover operations by Fraud Division Detectives proved that Lu was a working massage therapist and failed to report said employment or improvement of condition to the United States Department of Labor, the entity that handles workers' compensation for the U.S. Postal Service.

Detectives from CDI's Fraud Division are currently part of a task force operated by the Office of Inspector General - Postal Inspection Unit, focused on investigating and arresting postal employees who are suspected of committing insurance fraud in the State of California. Wayne Lu is charged with one felony count of insurance fraud and the case will be prosecuted by the Los Angeles County District Attorney's Office. Read More...

Trucking Company Owner Sentenced to 300 Days
Mon, 14 Apr 2014 12:49:27 - Pacific Time
A Salinas trucking company owner was ordered to spend 300 days in jail and pay more than $60,000 in fines for falsifying the number of his employees and the scope of their work

Monterey County Superior Court Judge Russell Scott sentenced Ricardo Casillas, 33, on charges of insurance fraud, workers' compensation fraud and payroll tax evasion, the District Attorney's Office said.

Casillas owns Desert Express Transportation Lines and Casillas Transportation Services.

Casillas was also placed on probation for 10 years and ordered to pay about $350,000 in restitution to the state Employment Development Department for failing to file payroll taxes, prosecutors said. An insurance carrier is seeking another $108,000 in unpaid insurance premiums. Read More...

DWC Changes Panel QME Process to Comply With Nararro Decision
Fri, 11 Apr 2014 13:02:36 - Pacific Time
On April 2, 2014, the Workers' Compensation Appeals Board issued an en banc decision in Navarro v. City of Montebello which invalidated part of QME Regulation 35.5(e) .

In 2009, Ismael Navarro filed an application and claim form alleging a cumulative injury from February 9, 2008 to February 9, 2009 to his back and ear and was evaluated by panel QME J. Yogaratnam, M.D., Then in 2010, applicant filed applications for adjudication with claim forms alleging a specific injury of June 1, 2010 to his back, lower extremities and legs and a specific injury of August 31, 2010 to his back and left leg.

In 2012, defendant petitioned to compel an evaluation of applicant’s two subsequent claims of injury by original panel QME Dr. Yogaratnam, but it did not seek to have applicant reevaluated regarding his previous claim of cumulative injury. Applicant objected. The WCJ found that applicant was entitled to a new panel QME in his specific injury cases and that QME Rule 35.5(e) that seems to require an applicant to return to the original QME did not apply. The WCAB agreed (using a slightly different rationale) and ruled that for subsequently filed claims, an applicant need no return to an original PQME.

Pursuant to the WCAB’s ruling that the applicable Labor Code provisions do not require an employee to return to t he same panel QME for an evaluation of a subsequent claim of injury, the DWC Medical Unit will now issue new QME panels for claims made after an evaluation has taken place. Initial QME panel requests must be submitted using QME Form 106 for represented cases or QME Form 105 for unrepresented cases.

To avoid unnecessary rejection of appropriate requests, in cases i n which additional panels are required in different specialties, parties and attorneys are reminded to use QME Form 31.7 Read More...

DWC Posts More Proposed Changes to HOPD/ASC Fee Schedules
Fri, 11 Apr 2014 13:02:29 - Pacific Time
The Division of Workers’ Compensation (DWC) has posted a first 15-day notice of modification to the proposed hospital outpatient departments and ambulatory surgical centers (HOPD/ASC) fee schedule regulations to the DWC website.

Members of the public are invited to present written comments regarding the proposed modifications noticed in the first 15-day comment period until 5 p.m. on April 28, 2014. The proposed modifications include:

1. Updating the definitions of emergency room visit and surgical procedures to conform to Medicare and HCPCS coding changes.
2. Providing a base facility fee "formula" to give additional clarification regarding the payment methodology for "Other Services" that are determined solely on the non-facility practice expense relative value units.
3. Clarifying that the alternative payment methodology will be inapplicable for dates of service on or after the effective date of the proposed regulations.

The notice and text of the regulations can be found on the proposed regulations page. Read More...

Crawford Placed on Top 100 Business Technology Innovators List
Thu, 10 Apr 2014 13:04:58 - Pacific Time
Crawford and Company today announced that it has appeared on this year’s InformationWeek Elite 100 - list of the top business technology innovators in the U.S. Crawford is being recognized by InformationWeek for a suite of innovative online and mobile tools that accelerate claims management;. The tools are accessed globally via an online portal called Crawford Desktop.

"We are honored to be recognized by InformationWeek for the sixth consecutive year for our creative development of very effective technology,' said Brian Flynn, Crawford executive vice president and global chief information officer. 'Crawford Desktop is a robust, flexible platform and its numerous features contribute directly and measurably to increasing claim processing efficiency."

Crawford Desktop uses mobile device geo-location to pinpoint the closest most qualified adjuster for a given claim site and claim type. The assignment is then electronically delivered to a qualified adjuster based on location, availability and performance scorecard. The adjuster accepts the assignment, travels to the site and documents each step of the claims management process (including uploading video, images and voice notes) to the Crawford Desktop portal from a mobile device.

The portal may accessed from a variety of mobile devices, including iPads®, iPhones®, BlackBerry® or Android® phones, with the adjuster’s data transferring to Crawford’s claims management system. Another unique feature of Crawford Desktop is the integration of social media into the claims management process, which provides collaboration with clients and Crawford employees, allowing adjusters in the field to solve problems interactively and in real-time.

This is InformationWeek’s 26th year identifying and honoring the nation's most innovative users of information technology. For 2014, this assessment was narrowed to a more elite 100 organizations. InformationWeek’s Elite 100 research tracks the technology-based investments, strategies, and results of some of the best-known organizations in the country. Unique among corporate rankings, the InformationWeek Elite 100 spotlights the power of business technology innovation. Additional details on the InformationWeek Elite 100 can be found online at the InformationWeek Website. Read More...

Bell Gardens Police Officer Convicted in Comp Fraud Case.
Thu, 10 Apr 2014 13:04:51 - Pacific Time
A former Bell Gardens police officer accused of filing a false workplace injury claim pleaded no contest in a case alleging he committed workers' compensation fraud.

Deputy District Attorney Arunas Sodonis of the Healthcare Fraud Division said John Kovacs, 31, pleaded to one felony count of workers’ compensation insurance fraud. Los Angeles County Superior Court Judge Paul Suzuki ordered Kovacs to complete 400 hours of community service and pay a $4,000 fine to the state workers’ compensation fund. The defendant is scheduled to be sentenced on Oct. 2, 2014. Kovacs filed a false workers’ compensation claim for a knee injury he alleged occurred on the job. An internal investigation by his employer, however, revealed that Kovacs suffered the injury during off hours at a physical agility test for the Huntington Beach Police Department.

The case was investigated by the Bell Gardens Police Department and the District Attorney’s Bureau of Investigation Read More...

Past Week News Archive

SF Bus Driver Charged With Felonies For Faking Robbery: Wed, 9 Apr 2014 14:35:51 - Pacific Time: Read More...

Truck Driver Faces Decade In Prison After Jury Trial: Wed, 9 Apr 2014 14:35:44 - Pacific Time: Read More...

Psychiatric AME Must Separately List and Assess Each Claimed Stressfull Event: Tue, 8 Apr 2014 13:07:55 - Pacific Time: Read More...

California Economy Report Card - Is Comp Our Only Problem?: Tue, 8 Apr 2014 13:07:24 - Pacific Time: Read More...

FDA Approves Painkiller Overdose Emergency Device: Mon, 7 Apr 2014 14:16:56 - Pacific Time: Read More...

DWC Posts Adjustments to OMFS: Mon, 7 Apr 2014 14:16:49 - Pacific Time: Read More...

Former Cal/OSHA Official Files Whistleblower Complaint Against Agency: Thu, 3 Apr 2014 11:30:19 - Pacific Time: Read More...

Study Says Voluntary Disability Insurance Reduces Comp Claims: Thu, 3 Apr 2014 11:30:13 - Pacific Time: Read More...

Feds Delay !CD-10 At Least One Year In Surprise Vote - Health Industry Enraged: Wed, 2 Apr 2014 12:21:18 - Pacific Time: Read More...

National Study of Compounded Drugs Shows Five-Fold Increase: Wed, 2 Apr 2014 12:21:10 - Pacific Time: Read More...