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Workers' Compensation Daily News for Aug 27, 2014

Two More Deaths Reported in Southern California Comp Community
Tue, 26 Aug 2014 08:38:29 - Pacific Time
After the report yesterday of the passing of Retired Workers' Compensation Judge Samuel L. Sosna Jr. we are saddened to learn of the passing of yet two additional members of our Southern California Workers' Compensation community.

Jack Paul Koszdin, the founding partner of the applicant's firm of Koszdin, Fields Sherry and Katz in Van Nuys California passed away on Sunday, August 24, 2014. There will be a memorial service this Wednesday, August 27, 2014 at 10:00 a.m. at Mt. Sinai Cemetery in the Chapel Tanach. The California State Bar website provides the following tribute to Jack.

Born in 1931, Jack Koszdin grew up in Chicago, a child of Russian Jewish immigrants. As a young man, he moved to California and attended UCLA for his undergraduate degree and his J.D. Admitted to the California State Bar in 1955, Jack Koszdin dedicated his professional life to securing the rights of injured workers throughout California, which he championed through the law, through the classroom and through broadcast media.

Jack strongly supported workers' union rights, serving as a founding member of VELPEC. He was legal advisor to the Valley Labor Political Education Council and co-hosted the Union Voice radio program.

Jack's passion for politics lead him to work on numerous political campaigns for democratic candidates throughout his career. He supported such notable leaders as Tom Bradley, Bill Lockyer, Hilda Solis, Loretta Sanchez, and Richard Katz, among many others.

Service to the community has always been a priority to Jack. He has served in leadership positions for such organizations as Red Cross, Child Guidance Clinic, and Valley Hillel. Jack lectured in law at UCLA, the University of West Los Angeles and L.A. Trade Tech. He was a partner in the firm of Levy, Koszdin and Woods before heading the firm of Koszdin and Siegel, which later became Koszdin, Fields, Sherry and Katz, where he remained senior partner until his recent retirement.

It is through the efforts of Jack P. Koszdin and the powerhouse attorneys like him, who over the years have zealously protected some of our state's most important yet vulnerable members -- the laborers -- that such landmark cases as Zemke v. Workmen's Comp. App. Bd. 68 Cal. 2d 794 and Franklin v. Workers’ Comp. Appeals Bd., supra, 79 Cal.App.3d at pp. 237-238 came to be. After almost 60 years in the field of workers' compensation law, Jack cared deeply for the plight of the injured worker, whose rights and benefits need defending now more than ever.

While Jack's professional achievements are many, his greatest pride comes in the successes of his children, Shelli, Kari, Kenton, David and Frank, who are all accomplished professionals in their own right. He lived in Burbank, California with his beloved wife of years, Helen Griffin.

We must also report that Workers Compensation Judge Dennis Stach from the Riverside WCAB Passed away on August 7, 2014 in Norco, CA.

Judge Stach graduated from Elmwood Park High School in 1962. He enlisted in the US Air Force where he served as a Pararescue Specialist during the Vietnam era. He went on to undergraduate studies at California State Polytechnic University and then law school at the University of La Verne and became an attorney in 1979 and later served as a Workers' Compensation judge in Southern California. He retired in 2010 after 25 years of service.

Judge Stach is survived by his sister, Mary Ann Carr, from San Diego; and brother, William Stach, of Streamwood, IL.

The Southern California Workers' Compensation community will surly miss both of these fine professionals who were well respected and well liked by colleagues. Read More...

Medical Marijuana States Report 25% Reduction in Opioid Fatalities
Tue, 26 Aug 2014 08:38:11 - Pacific Time
Researchers aren’t sure why, but in the 23 U.S. states where medical marijuana has been legalized, deaths from opioid overdoses have decreased by almost 25 percent, according to a new analysis reported by Reuters Health.

California, Oregon and Washington first legalized medical marijuana before 1999, with 10 more following suit between then and 2010, the time period of the analysis. Another 10 states and Washington, D.C. adopted similar laws since 2010.

For the study reported in JAMA Internal Medicine, August 25, 2014,, Marcus A. Bachhuber, MD of the Philadelphia Veterans Affairs Medical Center and the University of Pennsylvania, and his colleagues used state-level death certificate data for all 50 states between 1999 and 2010. In states with a medical marijuana law, overdose deaths from opioids like morphine, oxycodone and heroin decreased by an average of 20 percent after one year, 25 percent by two years and up to 33 percent by years five and six compared to what would have been expected, according to results in JAMA Internal Medicine.

Meanwhile, opioid overdose deaths across the country increased dramatically, from 4,030 in 1999 to 16,651 in 2010, according to the Centers for Disease Control and Prevention (CDC). Three of every four of those deaths involved prescription pain medications. Of those who die from prescription opioid overdoses, 60 percent have a legitimate prescription from a single doctor, the CDC also reports.

Medical marijuana, where legal, is most often approved for treating pain conditions, making it an option in addition to or instead of prescription painkillers, Bachhuber and his coauthors wrote. But the full scope of risks, and benefits, of medical marijuana is still unknown. "I think medical providers struggle in figuring out what conditions medical marijuana could be used for, who would benefit from it, how effective it is and who might have side effects; some doctors would even say there is no scientifically proven, valid, medical use of marijuana," Bachhuber said. "More studies about the risks and benefits of medical marijuana are needed to help guide us in clinical practice."

Marie J. Hayes of the University of Maine in Orno co-wrote an accompanying commentary in the journal. "Generally healthcare providers feel very strongly that medical marijuana may not be the way to go," she told Reuters Health. "There is the risk of smoke, the worry about whether that is carcinogenic but people so far haven’t been able to prove that." There may be a risk that legal medical marijuana will make the drug more accessible for kids and smoking may impair driving or carry other risks, she said. "But we’re already developing Oxycontin and Vicodin and teens are getting their hands on it," she said. If legalizing medical marijuana does help tackle the problem of painkiller deaths, that will be very significant, she said. "Because opioid mortality is such a tremendously significant health crisis now, we have to do something and figure out what’s going on," Hayes said.

The efforts states currently make to combat these deaths, like prescription monitoring programs, have been relatively ineffectual, she said. "Everything we’re doing is having no effect, except for in the states that have implemented medical marijuana laws," Hayes said. People who overdose on opioids likely became addicted to it and are also battling other psychological problems, she said. Marijuana, which is not itself without risks, is arguably less addictive and almost impossible to overdose on compared to opioids, Hayes said. Read More...

Retired Workers' Compensation Judge Samuel L. Sosna Jr. Dies of Cancer
Mon, 25 Aug 2014 09:06:18 - Pacific Time
Retired Workers' Compensation Judge Samuel L. Sosna, Jr. passed last week after a long battle with cancer.

Hon. Samuel L. Sosna, Jr. was retired as a Workers' Compensation Administrative Law Judge in the Van Nuys District Office of the California Division of Workers' Compensation. His retirement was announced in April, 2009. He was the past Presiding Judge of the Pasadena District Office from 1990 to 1996. He was well liked and well respected during his tenure as an attorney and as a Worker's Compensation Judge.

He received his undergraduate degree from Stanford University and his law degree from the University of California Los Angeles. He was admitted to the California Bar on January 14, 1959.

There has not been any public announcement of funeral arrangements. Read More...

Claimant/Restaurant Owner Gets 120 Days For Collecting TTD While Working
Mon, 25 Aug 2014 09:11:34 - Pacific Time
A former San Mateo County files clerk caught on video working at restaurants she owned while collecting disability for a supposed back injury was sentenced Thursday to 120 days in jail, according to District Attorney Steve Wagstaffe. and the story in Insurance News Net.

But Superior Court Judge Craig Parsons recommended that sheriff's officials instead confine and electronically monitor Sunita Sagar, 46, inside her home over that period. Parsons also placed Sagar on probation for three years, but defense attorney Lauren Kramer said the felony fraud charge will be reduced to a misdemeanor after 18 months if she behaves.

Sagar and her husband own multiple restaurant franchises in the Bay Area, including several Denny's, a Baja Fresh and a Jack in the Box, although none in San Mateo County, Wagstaffe said. They also own a computer equipment store in Fremont.

According to prosecutors, Sagar collected disability benefits from 2008 to 2012 for a back injury she reportedly sustained while working. She convinced doctors she was "completely sedentary and could not conduct her daily activities," and requested in-home care, according to Wagstaffe.

But insurance fraud investigators caught Sagar on hidden video "engaged in a very active lifestyle" that included working at her businesses, walking and bending without sign of discomfort, according to Wagstaffe. When her doctors were shown the video, they confirmed that Sagar had misrepresented her disability and was able to work, the district attorney said.

Despite her client's no-contest plea, Kramer said the videos don't prove Sagar was working. The allegations "weren't ever tested," she added, because the case didn't go to trial. "Obviously we have a very different perspective," Kramer said in a phone interview Thursday. "She indisputably spent time at the restaurants they owned, but she was not involved in the day- to-day operations."

Sagar received approximately $22,000 in undeserved benefits, according to the district attorney's office. On Thursday, she was also ordered to pay restitution to the county totaling $54,773, which include the costs of the investigation, according to Wagstaffe. Read More...

Feds Reclassify Hydrocodone Combination Products to Schedule II Narcotic
Fri, 22 Aug 2014 08:48:10 - Pacific Time
The U. S. Drug Enforcement Administration (DEA) published in the Federal Register the new Final Rule moving hydrocodone combination products (HCPs) from Schedule III to the more-restrictive Schedule II, as recommended by the Assistant Secretary for Health of the U.S. Department of Health and Human Services (HHS) and as supported by the DEA’s own evaluation of relevant data. The Federal Register has made the Final Rule available for preview on its website today at http://go.usa.gov/mc8d. This Final Rule imposes the regulatory controls and sanctions applicable to Schedule II substances on those who handle or propose to handle HCPs. It goes into effect in 45 days.

The Controlled Substances Act (CSA) places substances with accepted medical uses into one of four schedules, with the substances with the highest potential for harm and abuse being placed in Schedule II, and substances with progressively less potential for harm and abuse being placed in Schedules III through V. (Schedule I is reserved for those controlled substances with no currently accepted medical use and lack of accepted safety for use.) HCPs are drugs that contain both hydrocodone, which by itself is a Schedule II drug, and specified amounts of other substances, such as acetaminophen or aspirin.

"Almost seven million Americans abuse controlled-substance prescription medications, including opioid painkillers, resulting in more deaths from prescription drug overdoses than auto accidents," said DEA Administrator Michele Leonhart, "Today’s action recognizes that these products are some of the most addictive and potentially dangerous prescription medications available."

When Congress passed the CSA in 1970, it placed HCPs in Schedule III even though it had placed hydrocodone itself in Schedule II. The current analysis of HCPs by HHS and the DEA shows they have a high potential for abuse, and abuse may lead to severe psychological or physical dependence. Adding nonnarcotic substances like acetaminophen to hydrocodone does not diminish its abuse potential. The many findings by the DEA and HHS and the data that support these findings are presented in detail in the Final Rule on the website. Data and surveys from multiple federal and non-federal agencies show the extent of abuse of HCPs. For example, Monitoring the Future surveys of 8th, 10th, and 12th graders from 2002 to 2011 found that twice as many high school seniors used Vicodin®, an HCP, nonmedically as used OxyContin®, a Schedule II substance, which is more tightly controlled.

In general, substances placed under the control of the CSA since it was passed by Congress in 1970 are scheduled or rescheduled by the DEA, as required by the CSA and its implementing regulations, found in Title 21 of the Code of Federal Regulations. Scheduling or rescheduling of a substance can be initiated by the DEA, by the HHS Assistant Secretary of Health, or on the petition of any interested party. (Detailed information on the scheduling and rescheduling process can be found beginning on page 8 of Drugs of Abuse on the DEA’s website at http://www.justice.gov/dea/pr/multimedia-library/publications/drug_of_abuse.pdf.)

The rescheduling of HCPs was initiated by a petition from a physician in 1999. The DEA submitted a request to HHS for a scientific and medical evaluation of HCPs and a scheduling recommendation. In 2013, the U. S. Food and Drug Administration held a public Advisory Committee meeting on the matter, and the committee voted to recommend rescheduling HCPs from Schedule III to Schedule II by a vote of 19 to 10. Consistent with the outcome of that vote, in December of 2013 HHS sent such a recommendation to the DEA. Two months later, on February 27, the DEA informed Americans of its intent to move HCPs from Schedule III to Schedule II by publishing a Notice of Proposed Rulemaking in the Federal Register, outlining its rationale and the proposed changes in detail and soliciting public comments on the proposal, of which almost 600 were received. A small majority of the commenters supported the proposed change. Read More...

Granite Installer Faces 30 Years For Double Dipping
Fri, 22 Aug 2014 08:48:02 - Pacific Time
An employee for a building remodeling company was scheduled to be arraigned for allegedly cashing in $24,000 in disability checks after telling doctors he could not work--and then working somewhere else installing granite and earning $54,000.

OCWeeky reports that Angel Monzon, 51, of Santa Ana, was charged with 24 felony counts of insurance fraud, seven felony counts of perjury under oath, and four felony counts of making fraudulent statements. Held on $39,000 bail heading into the hearing, Monzon could get up to 30 years in state prison with a conviction, according to the Orange County District Attorney's office (OCDA).

Monzon lost his balance while working for Fermol Inc. in Huntington Beach on April 19, 2010, when he dropped a large piece of granite that landed on his right thigh and knee and broke. He was placed on temporary total disability and received more than $24,000 in TTD benefits, reporting to doctors that he was unable to work as a result of the injuries he suffered and has limited physical abilities, prosecutors say.

But Monzon actually kept working as a granite installer on a new job--while illegally continuing to accept disability benefits, according to the OCDA. .He is accused of making matters worse for himself on Jan. 30, 2013, when he allegedly lied in a deposition. According to prosecutors, Monzon claimed under oath to: not have worked since the date of the injury; only earn income from TTD benefits; have not worked since April 11, 2012; not have performed any activities involving granite since the date of the injury; not to have loaded or unloaded any granite since the date of the injury; to not have lifted anything over 5 pounds since the date of the injury; and not using a grinder, sander or buffer since the date of the injury.

But a California Department of Insurance investigation produced video evidence of Monzon "working on manual labor projects similar to those performed prior to his injury," the OCDA say. Arrested by sheriff's deputies, Monzon allegedly earned more than $54,000 from a new business while illegally receiving and cashing disability checks. Read More...

Court of Appeal Rejects Worker's Fraudulent Concealment Case
Thu, 21 Aug 2014 09:20:01 - Pacific Time
Jeff Sinclair worked for Praxair Inc. collecting and testing soil, water, and air samples from potentially contaminated sites. During his employment, he underwent annual physical examinations. Several of his annual physical examinations after 1993 showed he had high blood urea nitrogen and creatinine levels and the examiner noted he should follow up with his own physician. Although Sinclair received copies of all of his annual examination results, he never reviewed them and, therefore, never complied with the recommendation to follow up with his personal physician. Nonetheless, his personal physician diagnosed him with renal disease in 1994 and he admittedly knew of the diagnosis at least since 1996. At the time, his physician attributed his renal disease to gout.

In 2009, after another annual examination, he was diagnosed with stage IV renal failure and became disabled from work. A worker's compensation qualified medical examiner determined 85 percent of the cause of his renal disease was from work-related chemical exposures.

The Sinclairs subsequently sued Praxair for intentional conduct violating public policy, intentional infliction of emotional distress, and loss of consortium. Their complaint principally alleged Praxair intentionally concealed that workplace chemical exposures both caused and aggravated Sinclair's renal disease. Praxair moved for summary judgment, arguing the Sinclairs could not establish their claims fell within the fraudulent concealment exception to the workers' compensation exclusivity doctrine because, among other reasons, Sinclair knew he had renal disease. The superior court agreed and granted summary judgment to Praxair.

The Court of Appeal affirmed in the unpublished case of Sinclair v Praxair Inc.

An employee injured during the course of employment is generally limited to remedies available under the Workers' Compensation Act. Labor Code section 3602(b)(2) provides a narrow exception to this exclusivity rule and allows a civil suit '[w]here the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer's liability shall be limited to those damages proximately caused by the aggravation . . . .' This provision was enacted in 1982 and codifies the common law fraudulent concealment exception that was enunciated by the Supreme Court in Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465.

Three conditions are necessary for the fraudulent concealment exception to apply: (1) the employer must have concealed the existence of the injury; (2) the employer must have concealed the connection between the injury and the employment; and (3) the injury must have been aggravated following the concealment. If any one of these conditions is lacking, the exception does not apply and the employer is entitled to judgment in its favor.

Here, the undisputed evidence shows Sinclair was diagnosed with renal disease in 1994 and he knew of the diagnosis as early as 1996. Consequently, the Sinclairs cannot establish the first element of the fraudulent concealment exception, that Praxair concealed the existence of his injury from him. Read More...

NHL Concussion Suits Consolidated in Minnesota Federal Court
Thu, 21 Aug 2014 09:19:54 - Pacific Time
NBC Sports reports that three lawsuits filed by retired NHL players over concussion-related injuries have been consolidated and will be heard by a federal judge in Minnesota. A special panel assigned the cases Tuesday to U.S. District Judge Susan Richard Nelson of St. Paul. The order says Minnesota provides a central location for parties and witnesses, including those from Canada. It consolidates lawsuits filed by more than 200 former players in Minnesota, New York and Washington. It notes that Nelson is already presiding over one of the cases. The order says two similar cases pending in Minnesota and New York may be added later.

The lawsuits are similar to those on behalf of ex-NFL players, which resulted in an $870 million settlement. The NCAA agreed to a $70 million settlement in another concussion lawsuit.

The NHL has been hit with five different concussion lawsuits since November of 2013, when the first group of 10 ex-players filed in a federal court in Washington. The second was filed in April - one that included former NHLers Dan LaCouture, Dan Keczmer and Mike Peluso, but one that also lost credibility by claiming NHL legend Gordie Howe died in 2009 from a neurodegenerative disease called Pick’s disease.

The third suit was also filed in April, in Minneapolis, by retired players Dave Christian, Reed Larson and William Bennett. Lawsuits No. 4 and No. 5 were filed this past summer and featured former Former Bruins d-man Jon Rohloff, ex-Columbus forward Dan Fritsche and former Ranger Chris Ferraro.

The consolidation order says all five suits may eventually be joined into one. Read More...

CHSWC Study Confirms Higher Comp Costs in Southern California Region
Wed, 20 Aug 2014 09:16:17 - Pacific Time
The Commission on Health and Safety and Workers' Compensation (CHSWC) has released on its website the 214 page study, "Examination of the California Public Sector Self-Insured Workers' Compensation Program" for public comment. This study was part of Senate Bill (SB) 863 Reforms, required by Labor Code Section 3702.4, to examine the public sector self-insured workers' compensation program and to make recommendations to improve the administration and performance of the program. CHSWC contracted with Bickmore to assist with this requirement.

Recent municipal bankruptcies have drawn attention to public entity employers and the adequacy of the resources they possess to meet their workers’ compensation obligations. It is unclear what the impact to employees and taxpayers would be in the event that large or multiple public entities become unable to provide for their workers’ compensation liabilities.The purpose of this study is to identify variances in the performance of public employers’ self insured workers’ compensation and to recommend areas for improvement. In addition, the study is to provide information that facilitates benchmarking public self-insured workers’ compensation programs.

The study found that a self-insurer’s region has a significant impact on the claims costs. Self-insurers in southern California have experienced higher claim frequency, higher average claim size, and higher overall cost per $100 of payroll. Over the past several years this disparity between southern California and the rest of the State has increased. In addition, claims of southern California self-insurers tend to stay open longer in comparison to those in the rest of the State. The analysis of insurance company data by the California Workers’ Compensation Insurance Rating Bureau (WCIRB) has also pointed to disparities between claim frequencies and costs between different regions of the State. The current analysis confirms that these disparities also exist for public self-insurers. Since one of the goals of the workers’ compensation system to have equal treatment of and benefits for injured workers, the authors believe it is worth exploring the root causes of this disparity.

The type of agency has a major impact on the loss rates, claims sizes, and claims frequencies. Municipalities tend to have the highest costs, whereas educational entities (schools, colleges, and universities) have the lowest. Over the past several years the cost of municipal claims has risen at a faster pace than that of counties or educational entities. This is primarily due to increases in the average claim size. Also, claims of education self-insurers tend to close faster in comparison to those of counties and cities.

In general, JPAs have experienced lower costs per $100 of payroll than individual self-insurers. However, JPA costs have been increasing at a faster rate than those of individual self-insurers over the past several years.

The study found almost no difference in loss rates between self-insurers that utilize a TPA versus those that self-administer. Those that self-administer tend to have a higher claim frequency, but this is offset by a lower average claim size. In addition, loss rates have been increasing at a slower pace for those that self-administer than for those that utilize a TPA. Read More...

DWC Sets Public Hearing on Outpatient and ASC Fee Schedule
Wed, 20 Aug 2014 09:16:10 - Pacific Time
The Division of Workers’ Compensation has issued a notice of public hearing to revise the recently amended hospital outpatient departments and ambulatory surgical centers (HOPD/ASC) fee schedule. The public hearing has been scheduled for 10 a.m., September 18, in the Auditorium of the Elihu Harris Building, 1515 Clay Street, Oakland, CA 94612. Members of the public may also submit written comment on the regulations until 5 p.m. that day.

As set forth in Labor Code section 5307.1(c)(1), the maximum facility fee for services performed in a hospital outpatient department, shall not exceed 120 percent of the fee paid by Medicare for the same services performed in a hospital outpatient department. Senate Bill 863 also required that for services rendered in ambulatory surgical centers on or after January 1, 2013, the maximum facility fee shall not exceed 80 percent of the fee paid by Medicare for the same services performed in a hospital outpatient department. Effective Jan. 1, 2013, the Acting Administrative Director amended the HOPD/ASC fee schedule (Title 8, California Code of Regulations, sections 9789.30 et seq.), to implement Senate Bill 863 as it relates to the OMFS HOPD/ASC fee schedule. Effective Jan. 1, 2004, the Administrative Director adopted the HOPD/ASC fee schedule (Title 8, California Code of Regulations, sections 9789.30 et seq.), which is updated annually by Administrative Director Order.

The objective of this rulemaking action is to amend the OMFS HOPD/ASC fee schedule to correct the payment methodology for “Other Services” that are paid according to the RBRVS Practice Expense relative value units. The RBRVS conversion factor should be applied in the payment methodology instead of the HOPD/ASC Workers’ Compensation Multiplier that was adopted by the HOPD/ASC fee schedule regulations. Correcting the payment methodology to include the application of the RBRVS conversion factor is beneficial because payment would otherwise be incorrectly calculated.

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

Past Week News Archive


Broker Creates Fake Insurance Company to Steal Comp Premiums: Tue, 19 Aug 2014 08:25:01 - Pacific Time: Read More...


20% of Orthopedic Patients Doctor Shop for Opiates: Tue, 19 Aug 2014 08:24:46 - Pacific Time: Read More...


DWC Proposes Modifications to MTUS Regulations: Mon, 18 Aug 2014 07:51:28 - Pacific Time: Read More...


Med Management Company Owner Guilty of $3.2 Million Fraud: Mon, 18 Aug 2014 07:51:20 - Pacific Time: Read More...


Will Florida Comp Ruling Become a National Trend?: Fri, 15 Aug 2014 13:09:59 - Pacific Time: Read More...


Feds Highlight Fraud Data Mining Strategies: Fri, 15 Aug 2014 13:09:52 - Pacific Time: Read More...


WCIRB Suggests 6.7% Average Pure Premium Rate Increase: Thu, 14 Aug 2014 08:59:05 - Pacific Time: Read More...


Beauty Pageant Contestant Charged With Comp Fraud: Thu, 14 Aug 2014 08:58:59 - Pacific Time: Read More...


Convicted Claimant Fakes Robbery - Then Fakes PTSD Claim: Tue, 12 Aug 2014 12:51:49 - Pacific Time: Read More...


DWC Posts Annual WCJ Ethics Report: Tue, 12 Aug 2014 12:51:43 - Pacific Time: Read More...