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Paul M. Salisbury is an associate attorney with our Camarillo office. He has been practicing exclusively workers' compensation defense since 1980. Mr. Salisbury earned his Undergraduate Degree from UCLA in 1976 before earning his Juris Doctorate Degree from Whittier College School of Law in 1979. He was born and raised in Syracuse, New York.

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Workers' Compensation Daily News for Aug 18, 2017

South Carolina Sues Purdue Pharma - Again!
Thu, 17 Aug 2017 10:49:42 - Pacific Time
South Carolina sued Purdue Pharma becoming the latest state or local government to accuse the OxyContin maker of deceptive marketing practices that have contributed to a national opioid addiction epidemic.

According to CNBC News, the lawsuit by South Carolina Attorney General Alan Wilson, filed in Richland County Court of Common Pleas in Columbia, accuses the company of the unfair and deceptive marketing of opioid painkillers.

Wilson claimed Purdue has told doctors that patients who receive prescriptions for opioids generally will not become addicted and those who appeared to be were only "pseudoaddicted" and needed more of the drugs.

Since a 2007 settlement with South Carolina, Purdue has continued to downplay the addictiveness of its opioid products and overstated the benefits compared to other pain management treatments, according to the lawsuit.

Stamford, Connecticut-based Purdue has denied similar allegations and said it shares the concerns of public officials about the opioid crisis, and is committed to finding solutions.

Purdue and other drugmakers have been sued over opioid products by Oklahoma, Mississippi, Ohio, Missouri and New Hampshire as well as cities and counties in California, Illinois, Ohio, Oregon, Tennessee and New York.

A group of state attorneys general in June announced an investigation into the role played by pharmaceutical manufacturers in the opioid epidemic.

Purdue and three executives pleaded guilty in 2007 to federal charges related to the misbranding of OxyContin, which is used to relieve pain, and agreed to pay a total of $634.5 million to resolve a U.S. Justice Department probe.

That year, the privately held company also reached a $19.5 million settlement with 26 states including South Carolina as well as the District of Columbia. It agreed in 2015 to pay $24 million to resolve a lawsuit by Kentucky.

In Tuesday's lawsuit, South Carolina claimed that since the 2007 settlement, Purdue has continued to engage in misleading opioid marketing practices rather than reforming them to conform with the law. Read More...

Mylan Pharma Finalizes $465M Settlement
Thu, 17 Aug 2017 10:49:37 - Pacific Time
Mylan has finalized a $465 million settlement with the U.S. Justice Department, resolving claims it overcharged the government for its EpiPen emergency allergy treatment, which became the center of a firestorm over price increases.

Reuters reports that the U.S. Attorney's Office in Massachusetts revealed the accord 10 months after Mylan said it reached a deal resolving claims it misclassified the EpiPen as a generic rather than a branded product, underpaying rebates to state Medicaid programs as a result.

The investigation followed a whistleblower lawsuit filed under the False Claims Act that rival drugmaker Sanofi filed in 2016, two years after it first raised the matter with investigators.

As a result of the settlement, Sanofi will receive $38.7 million as a reward, authorities said.

"Bringing closure to this matter is the right course of action for Mylan and our stakeholders to allow us to move forward," Mylan Chief Executive Heather Bresch said in a statement.

Mylan shares gained 1 percent to $30.76 on the Nasdaq.

Sanofi did not immediately respond to a request for comment.

The EpiPen, which Mylan acquired in 2007, is a handheld device that treats life-threatening allergic reactions by automatically injecting a dose of epinephrine.

Mylan came under fire last year after raising the price of a pair of EpiPens to $600, from $100 in 2008, and listing it with Medicaid as a generic product even though it is listed with the U.S. Food and Drug Administration as a branded one.

The price increase enraged consumers and put the drugmaker at the center of the ongoing debate over the high cost of prescription medicines in the United States.

Mylan has since offered its own generic version for about $300 in response to the furor.

The Justice Department settlement centered on claims that Mylan misclassified the EpiPen as a generic product, which under Medicaid does not require the same level of rebates as brand-name products.

The $465-million settlement has previously come under attack by members of Congress in both parties who have called it too small.

An analysis by the U.S. Department of Health and Human Services' Office of Inspector General released in May found the U.S. government may have overpaid for EpiPens by as much as $1.27 billion between 2006 and 2016. Read More...

Celebration of Life Set for John "Jack" Maher Esq.,
Wed, 16 Aug 2017 08:57:41 - Pacific Time
One of our own, John "Jack" Maher Esq.,passed away on July 20th, 2017.

Jack was born on April 17th, 1951 in Mukwonago, Wisconsin to his mother Mildred, and father John "Jack" Maher Sr.

Along with being a successful attorney for decades within the California’s workers compensation community, he enjoyed hunting and was an avid and very competitive golfer.

Jack is survived by his loving wife Jennifer, children John and Amber, siblings Tim and Mary, and grandchildren Jaxon and Kaylee.

Jack was described by many as a "Wisconsin boy living temporarily in California for 50 years."

His celebration of life will be held at the Tustin Ranch Golf Club on Saturday August 19th, 2017 from Noon - 3:00 p.m..

Jack’s warm and friendly personality, and always present sense of humor will be missed dearly by his work family here at Floyd, Skeren and Kelly LLP. He was a great mentor to many and shared a huge breadth of knowledge and experience.

Read More...

DWC Suspends Five More Medical Providers
Wed, 16 Aug 2017 08:57:35 - Pacific Time
The Division of Workers’ Compensation has suspended five more medical providers from participating in California’s workers’ compensation system, bringing the total number of suspended providers to 32.

DWC Acting Administrative Director George Parisotto issued Orders of Suspension against the following providers:

1) Leovigildo Sayat, a physical therapist in Lompoc who in October 2015 pled guilty in US District Court for the Central District of California as a co-conspirator in a $15 million scheme to defraud Medicare by billing for physical therapy services never provided.

2) Alexander Kiev Martinez, a durable medical equipment provider in El Centro, who in April 2016 pled guilty in San Diego Superior Court for referring patients in a bribery scheme involving $25 million in improper claims for medical services and devices billed to California workers’ compensation insurance companies.

3) Robert Gogatz, a chiropractor in Murrieta who last May pled guilty in Riverside Superior Court to 16 counts of insurance fraud.

4) Robert Alva Rose, a physician in Irvine who pled guilty in Orange County Superior Court on September 15, 2015 to two misdemeanors related to his qualifications as a medical provider.

5) Paul Barkal, a physician in San Diego who surrendered his license to the Medical Board of California on October 17, 2005.

AB 1244 (Gray and Daly) requires the DWC Administrative Director to suspend any medical provider, physician or practitioner from participating in the workers’ compensation system in cases in which one or more of the following is true:

- The provider has been convicted of a felony or misdemeanor involving fraud or abuse of the Medi-Cal or Medicare programs or the workers’ compensation system, fraud or abuse of a patient, or related types of misconduct;
- The provider has been suspended due to fraud or abuse from the Medicare or Medicaid (including Medi-Cal) programs; or
- The provider’s license or certificate to provide health care has been surrendered or revoked.

The Department of Industrial Relation’s (DIR’s) fraud prevention efforts are posted online, including frequently updated lists for physicians, practitioners and providers who have been issued notices of suspension, and those who have been suspended pursuant to Labor Code §139.21(a)(1).

The department recently added a new web page with information on lien consolidations and the Special Adjudication Unit. Read More...

DWC to Dismiss 292,000 Liens
Tue, 15 Aug 2017 08:21:37 - Pacific Time
The Division of Workers’ Compensation announced it will dismiss more than 292,000 unresolved liens by operation of law. The liens belong to claimants who did not properly file the required Supplemental Lien form and 4903.05(c) Declaration form.

Senate Bill 1160, which became effective January 1, required all lien claimants who filed a lien between January 1, 2013 and December 31, 2016, and paid a filing fee, to file the forms by July 1. Lien claimants who failed to file the forms as required will have their liens dismissed.

Labor Code section 4903.05(c) was amended as part of the bill’s reform measures to combat fraud in the workers' compensation system. To comply with SB 1160’s requirements, DWC made available an e-form declaration and the Workers’ Compensation Appeals Board promulgated regulations requiring the use of this form.

Lien claimants should be aware that DWC will not send notification to claimants whose liens have been dismissed. DWC has posted frequently asked questions on the supplemental lien form online.

The Division of Workers’ Compensation previously reported that 441,070 supplemental lien declaration forms were filed as required by Labor Code section 4903.05(c). This represents half of the 882,648 liens filed in California’s workers’ compensation system between January 1, 2013 and December 31, 2016 for which a filing fee was paid.

Lien claimants who failed to file the "Supplemental Lien Form and 4903.05(c) Declaration" will have their liens dismissed. This would have been approximately 441,578 liens.

The announcement of the dismissal of 292,000 liens is somewhat short of the original estimate, but is nonetheless a significant development. Read More...

So. Cal. Employer Faces $6.3M Wage Theft Claim
Tue, 15 Aug 2017 08:21:30 - Pacific Time
The Labor Commissioner’s Office has filed a lawsuit against Calcrete Construction, Inc. seeking $6,300,338 for multiple wage theft violations affecting a group of 249 construction workers and the willful misclassification of 175 workers as independent contractors.

An investigation launched in October 2016 uncovered the Glendale-based company’s failure to pay the workers for overtime hours, allocate pay for sick leave and provide proper wage statements. The lawsuit, filed in Los Angeles Superior Court, also seeks civil damages and penalties.

Beginning in August 2016, Calcrete forced its workers under threat of termination to sign contracts stating they were independent contractors. The company then used staffing agencies Dominion Staffing and Southeast Personnel Leasing to pay the workers. "It is illegal for employers to use subcontractors to distance themselves from the obligation to pay workers, and we will use every tool to dissuade employers from this scheme," said Labor Commissioner Julie A. Su. "This lawsuit aims to recover the money these misclassified workers should have been paid after years of wage theft."

The suit alleges that Calcrete employees typically worked 10-12 hours Monday through Friday and eight hours on Saturday. They were paid only their regular hourly rate and not for the 18-28 hours of overtime they regularly worked. This underpayment occurred for a nearly two- year period from 2014-16.

The lawsuit seeks wages and damages of approximately $2,596,438 payable to the workers and penalties of approximately $3,703,900 payable to the state.

The Carpenters / Contractors Cooperation Committee, a union-affiliated, non-profit organization that advocates for workplace compliance within the construction industry, referred the case to the Labor Commissioner’s Office.

When a worker is misclassified as an independent contractor, they are not protected by minimum wage, overtime and retaliation laws. The worker is not guaranteed workers' compensation coverage if injured on the job and has no right to paid rest and meal breaks or sick leave.

Many factors go into determining if a worker is misclassified, including a review of who decides what tasks the worker does, who dictates how tasks should be done and who controls customer relations. Worker misclassification results in an estimated loss of $7 billion each year in payroll tax revenue to the state.

When workers are paid less than minimum wage, they are entitled to liquidated damages that equal the amount of underpaid wages plus interest. Waiting time penalties are imposed when the employer fails to provide workers their final paycheck after separation. This penalty is calculated by taking the employee’s daily rate of pay and multiplying it by the number of days the employee was not paid, up to a maximum of 30 days.
Read More...

Film Industry Safety Problems Claim Tom Cruise
Mon, 14 Aug 2017 08:27:26 - Pacific Time
Actor Tom Cruise was injured after a stunt for his new "Mission Impossible 6" movie went awry. It’s not known how badly he was injured but footage of the accident shows him limping away and in evident pain. The stunt for the the latest installment of the long-running franchise was being filmed in London. It involved Cruise jumping between two buildings with the assistance of a safety harness.

The footage, published by TMZ, show the 55-year-old actor having problems with timing his leap and crashing into the side of the second building. The actor was able to pull himself up onto the roof of the building but was then seen limping heavily before collapsing next to members of the film’s crew.

Cruise is something of a rarity among Hollywood actors for insisting on performing many of his own stunts, the Guardian said. In 2011, the actor scaled the outside of Dubai’s Burj Khalifa, currently the world’s tallest building, for a scene from "Mission: Impossible - Ghost Protocol." For 2015’s "Mission: Impossible - Rogue Nation," he was attached to the exterior of an Airbus 400 as it took off. Cruise also performed inside a zero-gravity plane for the recent reboot of "The Mummy."

And it seems that Tom Cruise has recently had more than his share of movie making safety problems.

American Made is an upcoming biographical crime film starring Tom Cruise. The film is based on the life of Barry Seal, a former TWA pilot who became a drug smuggler in the 1980s and was recruited later on by the DEA to provide intelligence. It is set to be released on September 29, 2017.

A twin-engine Piper Smith Aerostar 600, had been ferrying three pilots who were working on a film: Alan Purwin, 51, one of Hollywood's most sought-after helicopter stunt operators; Carlos Berl, 58, a well-qualified airman who knew how to navigate the red tape of the plane import-export business; and Georgia native Jimmy Lee Garland, 55, who could fly and repair just about anything. The flight took off after a long day of filming underway for weeks in the hills in northeast Colombia, near the border with Panama. This early-evening flight  was supposed to be a short taxi ride home.

Instead it crashed in foggy and cloudy conditions in the Ciolombian mountains. The only person to survive the crash was Garland, who suffered injuries to his legs, arms, face and chest

Relatives of Purwin sued the movie’s production companies - including Imagine Entertainment and Cross Creek Pictures - as well as the estate of Berl. Their suit alleges that Berl was piloting the plane at the time of the crash even though he lacked the skills to do so.

Berl’s estate countersued, claiming Berl informed producers and other parties related to the film that he had insufficient experience to fly the aircraft. The estate also alleges that the flight wasn’t safely planned, prepared or supervised.

These accidents are the latest in a series of deadly tragedies that have occurred on film sets.

A Los Angeles Times report in March found a sharp rise in catastrophic injuries on film sets in recent years. There were 20 deaths in the U.S. related to motion picture and television production for the five years that ended in December 2014, double the number of fatalities during the previous five-year period.
Read More...

Study Measures Fire Station Air Quality Cancer Risk
Mon, 14 Aug 2017 08:27:19 - Pacific Time
Firefighters have higher than average cancer rates, and while their exposure to carcinogens during fires is well known, a new study suggests exposures in fire stations contribute to their excess cancer risk, too.

"Firefighters spend large portions of their shift waiting for calls in a station, during which they can be exposed to diesel exhaust from idling trucks (which is a known carcinogen) and off-gassing from contaminated post-fire gear (which may be contaminated with a variety of known and/or possible carcinogens)," researchers point out in the Journal of Occupational and Environmental Medicine.

Several studies in recent years have found that firefighters have elevated risks for cancers of the lungs, skin, esophagus, brain, kidney and prostate.

"We know about the chemicals, heat and stress in the field, but what's left out is the chronic low-level exposure at the fire station during day-to-day business," lead study author Dr. Emily Sparer of Harvard's Dana-Farber Cancer Institute in Boston told Reuters Health by phone.

The Reuters report says that the Boston Fire Department approached Sparer's team with concerns about firefighters becoming sick at young ages. Although department staff knew that diesel exhaust, dust and ash caused sinus and breathing issues, they weren't sure when and where the most exposure occurred.

Sparer and colleagues sampled air particles at four Boston fire stations in spring 2016, looking for particulate matter less than 2.5 millimeters in diameter. These small particles are considered dangerous to human health because they can be inhaled and become lodged in the lungs. They also looked for particle-bound polycyclic aromatic hydrocarbons, which are chemicals released from burning coal, oil, gas, trash and wood.

They took air samples from the kitchen, truck bay, and outside the station - and conducted interviews with officers at each station to understand health and safety-related policies and practices, such as engine idle-time and washing of contaminated clothing. Particulate matter was present in higher concentrations in the truck bay than in either the kitchen or the outdoors, but levels varied throughout the day.

Newer building materials and effective separation between the different building zones helped keep levels low in the firefighters' living areas, the study authors found. Policies for ventilating truck exhaust outside and the washing of bunker gear after a fire also had large influences on air quality.

Sparer and colleagues hope to sample air in additional stations and at different times of the year. They're also talking to officers at the Boston stations about simple steps they can take to reduce risks, such as removing gym equipment from the truck bay, installing commercial-grade washing machines for gear, and closing doors to living areas, when possible.

A limitation of the study is the small size, which makes it difficult to assess whether the exposure numbers are exceptional, said Eero Pukkala of the University of Tampere in Helsinki, Finland. Pukkala, who wasn't involved with this study, has studied cancer among firefighters in Finland, Norway, Denmark, Iceland and Sweden. Comparison with other indoor locations, such as other workplaces, would be helpful as well to understand the numbers and the severity that firefighters face, he told Reuters Health by email.
Read More...

Opioid Abuse Just Declared a "National Emergency"
Fri, 11 Aug 2017 09:42:32 - Pacific Time
President Trump says he is ready to declare the nation's opioid crisis a national emergency. "It is a serious problem the likes of which we have never had. You know when I was growing up, they had the LSD and they had certain generations of drugs. There’s never been anything like what’s happened to this country over the last four or five years. And I have to say this in all fairness, this is a worldwide problem, not just a United States problem. This is happening worldwide. But this is a national emergency."

A few hours after this announcement, the White House in a statement said Trump has "instructed his administration to use all appropriate emergency and other authorities to respond to the crisis caused by the opioid epidemic."

The president's Commission on Combating Drug Addiction and the Opioid Crisis had recommended in an interim report released July 31 that the president immediately declare a national emergency, citing an overdose death rate of 142 a day.

The chairman of the president's opioid commission, New Jersey Gov. Chris Christie, thanked the president "for accepting the first recommendation" of the commission's report. "It is a national emergency and the president has confirmed that through his words and actions today, and he deserves great credit for doing so," Christie said.

The commission's report to the president said a declaration "would empower your cabinet to take bold steps and would force Congress to focus on funding and empowering the Executive Branch even further to deal with this loss of life."

The report also called on Washington to grant waiver approvals to all 50 states to eliminate barriers and allow treatment at Medicaid-funded residential facilities, a move it said would rapidly increase treatment capacity.

Trump's statement was welcomed by members of Congress. Sen. Rob Portman, R-Ohio, said Washington "must continue to fully fund important programs on prevention, treatment, and recovery." Portman also called for Congress to pass laws to "help stop overprescribing, increase the number of treatment beds covered by Medicaid at residential treatment facilities and help stop the flow of synthetic opioids that are shipped into this country through the postal service."

Rep. Marcy Kaptur D-Ohio, called the president's remarks "a good step," adding, "I will remind the President's team as they move forward, that Medicaid provides the bulk of addiction treatment and is a key partner in providing much-needed care to those in need."

Health and Human Services Secretary Tom Price said such a declaration is usually reserved for "time-limited" problems such as the Zika outbreak and that the administration believed they already had the resources and focus needed to tackle the problem. But he did add that "all things are on the table for the president."

So far, six states have declared statewide emergencies for the opioid epidemic and used the declaration to help increase access to the opioid overdose reversal medication, naloxone. Read More...

WCIRB Proposes .5% Rate Increase for Next Year
Fri, 11 Aug 2017 09:42:26 - Pacific Time
The WCIRB Governing Committee voted to authorize the WCIRB to submit a January 1, 2018 Advisory Pure Premium Rate Filing to the California Insurance Commissioner.

The Filing will propose advisory pure premium rates that average $2.01 per $100 of payroll, which is 14.3% less than the industry average filed pure premium rate of $2.34 as of July 1, 2017, and 0.5% more than the average approved July 1, 2017 advisory pure premium rate of $2.00. This modest proposed increase follows five consecutive advisory pure premium rate decreases since early 2015 that have totaled more than 27%.

In his presentation to the Governing Committee, WCIRB EVP and Chief Actuary Dave Bellusci noted that the indicated January 1, 2018 average advisory pure premium rate, while slightly above the average approved July 1, 2017 pure premium rate, is more than 7% below the average January 1, 2017 advisory pure premium rate. Mr. Bellusci identified some of the factors contributing to this reduction over the last year:

- Medical losses have continued to develop downward
- Claim settlement rates have continued to accelerate
- Increasing loss adjustment expense trends have moderated
- Increased wage growth is being forecast

Mr. Bellusci also noted that countering these favorable trends and contributing to this modest proposed increase from the average approved July 1, 2017 advisory pure premium rates are recently rising average claim severities and continued sharp growth in the volume of cumulative injuries.

The WCIRB will submit its January 1, 2018 Pure Premium Rate Filing to the California Department of Insurance (CDI) on or around August 18, 2017.

The CDI will schedule a public hearing to consider the Filing and once the Notice of Proposed Action and Notice of Public Hearing is issued, the WCIRB will post a copy in the Filings and Plans section of the WCIRB website. Read More...

Past Week News Archive


Court Limits Exclusive Remedy Protection for Co-workers: Thu, 10 Aug 2017 10:51:39 - Pacific Time: Read More...


CVS Faces "Fraudulent" Clawback Pricing Class Action: Thu, 10 Aug 2017 10:51:34 - Pacific Time: Read More...


FBI Probes Orange County Addiction Center Empire: Wed, 9 Aug 2017 09:05:28 - Pacific Time: Read More...


Hospital Pays $10M for Stem Cell Research Fraud: Wed, 9 Aug 2017 09:05:21 - Pacific Time: Read More...


DWC Proposes ACOEM Modifications to MTUS: Tue, 8 Aug 2017 09:56:44 - Pacific Time: Read More...


WC Sector Improved "Significantly" Since 2011: Tue, 8 Aug 2017 09:56:39 - Pacific Time: Read More...


Drobot, Sobol Face August Lien Hearings: Mon, 7 Aug 2017 10:37:05 - Pacific Time: Read More...


DEA Proposes 20% Reduction in Opiate Manufacturing: Mon, 7 Aug 2017 10:37:00 - Pacific Time: Read More...


12 Arrested as 7 Sham LA Medical Clinics Closed: Fri, 4 Aug 2017 09:31:57 - Pacific Time: Read More...


Industry Predicts Much Lower Generic Drug Prices: Fri, 4 Aug 2017 09:31:50 - Pacific Time: Read More...