Does this politicians proposed bill comply with current apportionment laws or is it just a political statement?
"The chairman of the Senate Insurance Committee is pushing legislation to overturn a California Court of Appeals decision that condoned apportioning part of a worker’s permanent disability to a genetic predisposition.
Sen. Steve Bradford, D-Gardena, on Wednesday amended Senate Bill 899 to propose language that would abrogate the 3rd DCA decision in City of Jackson v. Workers’ Compensation Appeals Board (Rice).
In City of Jackson, the appellate court overturned the WCAB after it said a qualified medical evaluator was not allowed to apportion 49% of Christopher Rice’s disability to personal factors and “genetic issues. The WCAB said apportionment can’t be based on immutable characteristics.
But the appellate court said in its April 2017 decision that there was “no relevant distinction between allowing apportionment based on a pre-existing congenital or pathological condition and allowing apportionment based on a pre-existing degenerative condition caused by heredity or genetics.”
Bradford’s amended bill says the decision was “abhorrent” and violates legal norms in California.
“The City of Jackson decision effectively legalizes discrimination on the bases of genetics and heritability, including race, gender and religion, creating disparate impacts in the form of reduced permanent disability benefits to injured workers,” the bill reads.
The bill proclaims the intent of the Legislature to abrogate the decision in City of Jackson and to prohibit other courts from apportioning disability to immutable factors. The bill also declares that the intent of lawmakers is not to prohibit apportionment to “specific identifiable factors.”
The bill is in the Senate Rules Committee pending assignment to a policy committee." Work Comp central
Has Sen. Bradford bothered to read Labor Code section 4663?
4663. (a) Apportionment of permanent disability shall be based on causation.
(b) Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the permanent disability.
(c) In order for a physician s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries. If the physician is unable to include an apportionment determination in his or her report, the physician shall state the specific reasons why the physician could not make a determination of the effect of that prior condition on the permanent disability arising from the injury. The physician shall then consult with other physicians or refer the employee to another physician from whom the employee is authorized to seek treatment or evaluation in accordance with this division in order to make the final determination.
(d) An employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments.
COUNTY OF SAN DIEGO,
WORKERS' COMPENSATION APPEALS
BOARD and KYLE PIKE,
The question presented in this writ proceeding is straightforward. Is petitioner,
County of San Diego (the County), correct that Labor Code section 4656, subdivision
(c)(2)1 precludes respondent, Workers' Compensation Appeals Board (the Board),
from awarding respondent, Kyle Pike, temporary disability payments for periods of
disability occurring more than five years after the date of the underlying injury that
Pike suffered while working for the County? We conclude that the plain language of
the statute indicates that the answer to this question is, "Yes." Section 4656,
subdivision (c)(2) provides, "Aggregate disability payments for a single injury
occurring on or after January 1, 2008, causing temporary disability shall not extend
for more than 104 compensable weeks within a period of five years from the date of
injury." (Italics added.) Accordingly, we annul a Board order affirming a workers'
compensation administrative law judge's order that awarded temporary disability
benefits for periods of disability occurring more than five years after Pike's injury.
To read the entire decision please click here: www.courts.ca.gov/opinions/documents/D072648.PDF
Former Hospital Owner Sentenced to over 5 Years in Prison for Orchestrating Scheme that Paid over $40 Million in Illegal Kickbacks to Doctors, Other Medical Professionals for Spinal Surgery Referrals
SANTA ANA, California – A federal judge today sentenced the former owner of Pacific Hospital in Long Beach to 63 months in prison for overseeing a 15-year-long health care fraud scheme that involved more than $40 million in illegal kickbacks paid to doctors and other medical professionals in exchange for referring thousands of patients who received spinal surgeries.
The scheme operated by Michael D. Drobot led to more than $500 million in fraudulent bills being submitted during last five years of the scheme – much of which was paid by the California worker’s compensation system.
Drobot, 73, of Corona Del Mar, was sentencing this morning by United States District Judge Josephine L. Staton, who noted that Drobot “introduced greed into the doctor-patient relationship.”
Drobot pleaded guilty in 2014 to charges of conspiracy and paying illegal kickbacks, admitting that he orchestrated a wide-ranging fraud scheme in which “[t]housands of patients received surgeries at Pacific Hospital not knowing that [Drobot] bribed their physician to perform their surgery at Pacific Hospital,” prosecutors wrote in a sentencing memorandum filed with the court. Drobot “was motivated by greed and ultimately profited millions of dollars through the scheme.”
From at least 1997 thorugh 2013, Drobot, who owned and/or operated Pacific Hospital during this time, ran a scheme in which he billed workers’ compensation insurers hundreds of millions of dollars for spinal surgeries performed on patients who had been referred by dozens of doctors, chiropractors and others who were paid illegal kickbacks.
“The patients believed that they were receiving conflict-free medical advice when, in fact, [Drobot] illegally incentivized their physician to perform the surgery at Pacific Hospital,” prosecutors said in court documents.
The kickbacks were financed largely by money generated from Drobot’s sale of medical devices implanted into state workers’ comp patients during spinal surgeries. Drobot set up a scheme that exploited a now-repealed California law known as the spinal “pass-through” legislation, which permitted hospitals to pass on to workers’ comp insurers the full cost of medical devices implanted in spinal surgery patients.
Drobot generated the kickback money through his own medical hardware company – the Newport Beach-based International Implants (I2) – to sell hardware used in spinal surgeries performed at Pacific Hospital. I2 submitted bills to Drobot’s Hospital and tacked on an additional $250 per device knowing that the “pass-through” law required to state to pay the full amount of the invoices.
“Through the operation of I2, [Drobot] generated substantial profits that he used to pay at least $40 million dollars in kickbacks,” prosecutors wrote in court papers. “According to the former CFO of Pacific Hospital, his income, bonuses, and other compensation at the hospital was in excess of $20,000,000.”
As part of the health care fraud scheme, Drobot paid bribes to California State Senator Ronald Calderon in exchange for Calderon performing official acts to keep the spinal pass-through law on the books. Calderon is currently serving a 3½-year sentence in federal prison after admitting that he took bribes from Drobot and undercover FBI agents.
Drobot typically paid a kickback of $15,000 per lumbar fusion surgery and $10,000 per cervical fusion surgery. Some of the patients lived as much as hundreds of miles away from Pacific Hospital, and closer to other qualified medical facilities.
Drobot and his co-conspirators concealed the kickback payments by entering into bogus contracts with the doctors, chiropractors, and others who received kickbacks. In reality, the contracts merely provided a cover story for the kickback payments.
In addition to the prison term, which Drobot will begin serving on June 4, Judge Staton imposed a $500,000 criminal fine and issued an order directing Drobot to forfeit $10 million to the government. As part of the forfeiture judgment, which Judge Staton signed on Wednesday, Drobot was ordered to liquidate assets that include real estate and a 1965 Aston Martin, a 1958 Porsche, and a 1971 Mercedes Benz.
Judge Staton has scheduled a restitution hearing for May 11.
In addition to Drobot, prosecutors have charged seven other defendants in relation to the kickback scheme. The seven additional defendants – which include Drobot’s son, Michael R. Drobot – have pleaded guilty and are scheduled to be sentenced by Judge Staton over the next two months.
The ongoing investigation into the spinal surgery kickback scheme is being conducted by the Federal Bureau of Investigation; IRS Criminal Investigation; the California Department of Insurance; and the United States Postal Service, Office of Inspector General.
The case against Drobot was being handled by Assistant United States Attorneys Joseph T. McNally and Scott D. Tenley of the Santa Ana Branch Office, and Ashwin Janakiram of the Major Frauds Section.
In Sobol v. State of California Department of Corrections and Rehabilitation, 2017 Cal. Wrk. Comp. P.D. LEXIS 454, the WCAB determined that an AME's opinion on apportionment to genetic factors was not substantial evidence because it was conclusory and not substantiated with sufficient medical rationale. The applicant sustained an industrial injury to his lumbar spine. The AME reported that the cause of degenerative disease in the spine was convincingly shown to be principally genetic, and apportioned 25 percent of the disability to cumulative aggravation from the job. The WCAB stated that although City of Jackson v. WCAB (Rice) (2017) 82 CCC 437 allowed apportionment to genetic or heredity factors, a decision must be supported by substantial evidence. The WCAB found that the AME made a conclusory statement that degenerative disk disease was convincingly shown to be genetic, but did not provide any medical detail, data, studies or research articles to support his findings. The applicant was awarded permanent disability based on the AME's opinion without apportionment.
An Orange County transit worker accused of working at a fishing supply store while receiving workers’ compensation benefits was sentenced to four days in jail and ordered to pay $6,075 in restitution after pleading guilty to two misdemeanor charges Thursday.
David J. Barker pleaded guilty to filing a false claim and making a false statement to obtain compensationThursday. In addition to jail time and restitution, he was also ordered to serve three years of informal probation and perform 30 days of community service, according to information from the Orange County Superior Court’s website.
Barker in June 2014 filed a claim against the county for a right ankle sprain he said he sustained by slipping on a curb while performing a check of his bus. The treating physician placed Barker on modified duty, saying he should not be driving Orange County Transportation Authority vehicles and should avoid prolonged walking or standing.
The transit authority could not accommodate the restrictions and placed Barker on temporary total disability until he was released to full duty in July 2014, according to information provided by Intercare Holdings Insurance Services Inc.
Barker in July 2015 returned to his doctor complaining of persistent pain in his right ankle. He had surgery in August 2015 but continued to complain about lingering pain and was kept on modified duty.
Surveillance started in March 2016 uncovered evidence that Barker was working as a salesman for Sav-On Bait and Tackle Shop, according to Intercare.
A California appellate court ruled that an injured worker could not proceed with his civil action against his employer and its insurance carrier for alleged misconduct during the negotiations to settle his comp claim because the Workers' Compensation Appeals Board had exclusive jurisdiction over the matter.
Case: Valdez v. Clarendon National Insurance Co., No. B278542, 11/29/2017, unpublished.
Facts and procedural history: Alejandro Valdez suffered debilitating injuries in an accident while working for T&T Improvements in November 2006.
T&T was owned by Tim Tilton and had a workers’ compensation insurance policy with the Clarendon National Insurance Co.
After Valdez filed a workers’ compensation claim, he entered into settlement negotiations with T&T's counsel, Alex Kidd.
According to Valdez, he was told that the claims adjuster had "final funding authority” for the settlement and that Kidd needed to get the “green light” on the verbal agreement he had reached with Valdez to resolve the entire comp claim.
Two days later, Kidd allegedly told Valdez that “QBE” would not consent to the deal. Valdez requested clarification as to the identity of the insurance carrier responsible for his claim, and Kidd indicated that it was Clarendon.
About a week later, Kidd informed Valdez that he was authorized to enter into a stipulation that Valdez was permanently and totally disabled, but he could not enter into a resolution for Valdez’s claim for future medical care.
In January 2016, Valdez filed suit against T&T, Tilton and Clarendon. He also named QBE Americas Inc. and the QBE First Insurance Agency as defendants, asserting the QBE entities owned or controlled Clarendon.
Valdez contended that the defendants were liable for promissory fraud, since Kidd had induced him to enter into stipulation of permanent and total disability by falsely promising a resolution of his claims for ongoing and future medical care.
He also claimed that the defendants had concealed or misrepresented the identity of the insurance carrier with liability for his claim.
Valdez further argued that the oral agreement he had reached with Kidd ought to be enforceable, and that the defendants breached the terms of the agreement.
The defendants demurred to all of Valdez’s claims, and a trial judge sustained the demurrer.
Analysis: The 2nd District Court of Appeal noted that Valdez’s causes of action against the defendants were based on acts related to the attempted settlement of his claim for ongoing and future medical expenses.
The court said the acts were “intrinsic to the workers’ compensation claims process,” and as such, the Workers’ Compensation Appeals Board had exclusive jurisdiction over them.
The court further determined that Valdez had failed to establish that any of the limited exceptions to the WCAB’s exclusive jurisdiction were applicable to his case.
The court noted that claims of conspiracy fall outside the scope of the WCAB’s jurisdiction but said Valdez’s allegations that the defendants had conspired to conceal the identity of the insurance carrier were insufficient, since no faces were alleged as to the formation and operation of the alleged conspiracy and there was no damage alleged to have resulted.
While the court acknowledged that a worker can proceed with a civil action against his employer if the employer fails to secure the payment of workers’ compensation for his injuries by being insured against such liability, the court said this exception was inapplicable to Valdez, since T&T had comp coverage.
The DIR has an online list of all suspended providers. You can find that list here:
The Legislature is trying to make sure the suspended providers, including Pacific Hospital and Michael Drobot cant squirm out of the consequences of their actions and convictions and still collect on their liens.
DIR suspended five more medical providers today. Read the Bulletin below
Hefley Law, APC