Earlier this month the Los Angeles City Council passed an ordinance requiring condoms to be used in all permitted adult films shot within their city limits. It brings up many interesting workers compensation issues. After all, this requirement is for the health and safety of employees. Is it any different from requiring construction workers to wear a helmet? Road workers to wear a bright, orange vest?

 

 

In this commentary on Salon.com porn performer, writer and director Lorelei Lee calls the ordinance well intentioned but ineffectual. She notes that the new law requires adult film production companies to pay a fee with permit applications. “Currently, condoms are used in the mainstream gay adult film industry (which includes only gay male films), while the heterosexual industry (which includes both lesbian and straight films) has used mandatory STI (sexually transmitted infections) testing as a health and safety precaution since the early 2000s,” she writes.

 

 

Lee writes that until May of 2011, the Adult Industry Medical Center, founded by a retired performer, ran a nationwide STI testing service and database that certified heterosexual performers as STI-free previous to their working on any production whereas the new ordinance is in response to a San Francisco-based nonprofit AIDS Healthcare Foundation campaign along with other groups that have picked and boycotted companies which sell or show condom-free pornography.

 

 

One of the protest leaders called the testing service a “fig leaf” over the adult industry and backed the lawsuit that led to the organization’s financial insolvency and shutdown last year, which left a vacuum in health and safety protections in the industry, Lee writes. “(He) seemed to hope that leaving performers without any kind of health protection would force legislators to mandate condom use,” she writes.

 

 

Lee writes that she became a condom-only performer in 2010 but had worked for eight years previously relying only on the testing service. “But during my time as a non-condom performer, I never once contracted an STI on set that condoms would have prevented, and truthfully, I’m not sure that condoms actually keep me safer than testing alone,” she writes.

 

 

She writes that performers have a mix of opinions as to whether they mind actually using condoms on set and some are even strongly opposed to using condoms at work, believing that they may actually increase likelihood of STI transmission.

 

 

Lee says what she is most opposed to is regulating condom use in the industry through government regulation. “Many of the people attracted to this industry are still those who don’t care a lot about public opinion or about obeying authorities. In the case of a condom mandate tied to permits, many producers will simply shoot in Los Angeles without a permit. Others will move production outside of the city – to places like Las Vegas, San Francisco or Miami, where some companies are already established,” she writes, noting that perhaps that s what the city is after.

 

 

In effect, Lee writes, this legislation has made it more difficult for the industry to use the protections already in place with AIM’s testing program. “We’re also opposed to the squandering of AHF resources – resources that could be effectively used to help prevent and treat HIV and AIDS – on a political campaign against an industry whose health and safety regulations are already working. In the decade since AIM began the program of mandatory testing, six performers have tested positive for HIV, and only three of those have shown to be from on-set transmissions,” she writes. “That’s three transmissions during the course of filming tens (or perhaps hundreds) of thousands of scenes. There are no real statistics as to how this compares to transmission rates in the general population.”

 

 

 

 

 

 

 

 

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

Posted in California Workers Comp, Communication with Employees, Drug, Alcohol & Impairment Testing, Employment Law Issues, Management Commitment, Risk Management, Safety and Loss Control, Wellness Programs and WC |

 

According to court documents, Beard worked as a distribution and window clerk for the Postal Service in Groveland. For two plus years, Beard received federal workers comp benefits for an on-the-job injury. Because of her claimed injuries, restrictions were placed on Beard's physical activities: no reaching, no pushing, no pulling, no driving for more than 20 minutes, etc.

 

 

Yet, Beard performed various physical tasks, such as horseback riding, caring for horses, yard work, and driving all using the purportedly injured part of her body. Because of claims Beard made in routine Department of Labor questionnaires, she continued to receive workers comp benefits, all while not entitled to such benefits. (WCxKit)

 

At least once a year the U.S. Department of Labor’s Office of Workers Compensation Programs is required to ask every total disability benefit claimant whether the claimant has had any employment, earnings, or changes in their medical condition over the previous 15 months. In compliance with regulations, OWCP sends out a questionnaire to each claimant. Claimants reporting changes in employment, earnings, or their medical conditions on the questionnaire may experience a reduction or termination of benefits.

 

 

 

 

 

 

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

Posted in California Workers Comp, Federal Workers Compensation, Fraud and Abuse |

A Los Angeles area metal shredding facility accused of releasing toxic substances into the atmosphere has agreed to pay more than $2.93 million to comply with air pollution laws and to settle an environmental protection lawsuit, according to a report from the Los Angeles County District Attorney’s office.

 

 

Deputy District Attorney Daniel Wright of the Environmental Law Section said SA Recycling, LLC – an automobile and appliance shredding company – agreed to the settlement, which was signed by Los Superior Court Judge Debre K. Weintraub. The civil lawsuit and settlement were filed last week. (WCxKit)

 

 

The action alleged that SA Recycling violated air pollution laws when an explosion at its San Pedro facility at Terminal Island destroyed its air pollution control system in May 2007 and the company continued operating for weeks without proper equipment.

 

 

At the time of the violations, the company was operated by Hugo Neu Corp. SA Recycling purchased the company in September 2007.

The injunction permanently enjoins SA Recycling from operating its San Pedro shredder without a fully functioning air pollution control system.

 

 

Under the terms of the stipulated judgment, SA Recycling has agreed to install an air pollution control system to minimize emissions at its San Pedro location and two other sites in Orange and Kern counties. The company also has agreed to work closely with state and local regulators to address compliance issues related to its operations.

 

 

SA Recycling must additionally pay $260,000 in civil penalties and investigative costs to the Los Angeles County District Attorney’s Office and $430,000 to the California Department of Toxic Substances Control (DTSC) for investigative expenses and enforcement tools.

 

 

Among others who will benefit are the College of Engineering at the University of California, Davis, slated to receive $100,000 to support aerosol studies; the Coalition For A Safe Environment, which will receive $75,000 for select projects; and 11 San Pedro Bay marina owners and operators, who will share $165,000 to target water and sediment pollution sources. (WCxKit)

 

 

SA Recycling shreds and sorts recyclable metal materials. The process, ultimately, generates auto shredder residue (ASR) which is treated to reduce solubility of any remaining metals.

 

Posted in California Workers Comp, Legal Doctrines, Safety and Loss Control |

 

The 16-day rule is still good law.

 

But, on November 22, 2011, the WCAB amended its September 26, 2011 decision to clarify that it shall apply prospectively from September 26, 2011. 

 

The WCAB explained,

 

 

"If prior to our September 26, 2011 decision, a panel was prematurely but otherwise properly requested and there was no objection on the ground of prematurity, then the resulting panel may not later be challenged on that ground. In other words, if an objection based on prematurity was not made prior to our September 26, 2011 decision, neither party may challenge the request, the ensuing panel, the remaining QME following the striking of names, or the resulting report for prematurity."

 

 

"Thus, for example, if a QME evaluation has already taken place, our September 26, 2011 decision does not provide grounds for a new one. If the DWC Medical Unit has already issued a panel and no objection based on the panel request's prematurity was raised prior to our September 26, 2011 decision, that panel may not be challenged based on our September 26, 2011 decision. If an otherwise proper panel request was made, and was premature according to our September 26, 2011 decision, but no objection based on its prematurity was raised prior to September 26, 2011, any panel subsequently issued in response to that request shall not be invalidated based on that decision."

 

 

"If, on the other hand, a panel request was made prior to our September 26, 2011 decision, which was premature according to that decision, and the opposing party promptly objected on that basis before the September 26, 2011 decision issued, the objecting party is entitled to the benefit of its correct interpretation of section 4062.2(b) because the party timely raised the issue in its own case. We express no opinion at this time as to what constitutes an adequate objection." [emphasis in original] (WCxKit)

 

 

Finally, "Our September 26, 2011 decision does not constitute good cause to reopen any order, decision, or award."

 

California Attorney: Albert A. Navarra is a practicing lawyer from Newport Beach, CA, a Board Certified Specialist in Workers Compensation law, and a partner at Sapra & Navarra, LLP. Navarra is a frequent speaker about workers compensation issues, and has represented employers in the area of workers compensation for over 10 years. He is also an expert in constitutional law, the author of The Elements of Constitutional Law, and a frequent guest on radio stations across the country. He can be reached at: (866) 384-4891 or Albert@snworkcomp.com.

 

Posted in California Workers Comp, Employment Law Issues, Legal Doctrines |

Few people realize the workers’ compensation industry is actually 100 years old. It’s one of the most-successful public-private partnerships in U.S. history.

 

 

Since 1983, the Workers Compensation Research Institute (WCRI) has been providing the public with research on WC public policy issues. Based in Cambridge, Mass., the organization includes among its members employers, labor organizers, public and private insurers, health care providers, managed care companies, and state government representatives from the U.S., Canada, New Zealand, and Australia.

 

 

Dr. Richard Victor, WCRI executive director, oversees the institute’s studies and analysis that has added ammunition for the reforms to various aspects of the workers' comp system. Prior to working at the institute, he spent seven years conducting research at The Rand Corporation in Washington , D.C., and Santa Monica , Calif. His law degree and Ph.D. in economics is from the University of Michigan.

 

 

LowerWC recently asked Victor for his impressions of the industry. What follows are some of his comments:

 

 

“One of the most important, and troubling, areas for workers’ compensation systems is to find the appropriate ways to use narcotics – and to discourage abuse and diversion. A second critical issue is to find new and innovative ways for help workers return to productive employment,” Victor says.

 

 

To this end, WCRI is conducting several research phases to help find answers for WC narcotic use and return-to-work issues, he says.

 

 

Victor says the latest trends in workers’ compensation also include medical cost management. “Medical costs now represent more than half of workers’ compensation costs in most states. There is increasing focus on pharmaceutical costs and utilization and the payments made to hospitals and ambulatory surgery centers,” he says.

 

 

Further, everyone wants to know how to save the employers money. Victor says, “Most large employers are focused on three legs of the four-legged cost containment table – risk financing, injury prevention, and claim management. The fourth leg is a large opportunity because employers have underinvested in it – improving the ‘rules of the game’ to make the system more effective for workers and more cost effective for employers.”

 

 

He continues, “This requires that employers join together to formulate political positions and strategies and gather available evidence about how a given state system is performing, how it might be improved, and what lessons can be learned from other states.”

 

 

California and Texas are good examples of where employers have taken collective action and costs have fallen significantly, Victor says. One of the chief objectives of the WCRI CompScope benchmarking studies is to help stakeholders and public officials set priorities and debunk myths.

 

 

One important part of this research is an upcoming conference. The WCRI Annual Issues and Research Conference will be Nov. 16-17 in Boston with keynote speaker Peter Barth, professor of economics emeritus at the University of Connecticut. This will be its 28^th year.

 

 

The goal there to present new ideas and alternative views, Victor says. “Whether you are managing workers’ compensation claims, involved in strategic planning, concerned with medical costs and utilization, or just looking for a better understanding of workers' compensation – this is the conference for you.”

 

 

All of the sessions highlight the first presentations of the latest research findings from WCRI while drawing upon the diverse perspectives of highly-respected workers’ compensation experts and policymakers from across the country, he says. “Attendees tell us that they value the large attendance because it allows them to leverage their time while at the conference. There are also opportunities to meet and interact with WCRI researchers.”

 

 

“The most important advice I can give remains a secret until the WCRI conference, when I (present) ‘The Elephant in the Room.’ It will highlight some things that are underappreciated, but are likely to shape workers’ compensation systems for the next decade. The future is not always like the past,” Victor says. “Of course, I would like to see your readers attend to stretch their thinking, gain a competitive edge, and network with peers.”

 

 

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of  Manage Your Workers Compensation: Reduce Costs 20-50% on cost containment techniques.  www.WCManual.com. Contact: RShafer@ReduceYourWorkersComp.com.

 

Posted in Assessment & Diagnostics, California Workers Comp, Communication with Employees, Drug, Alcohol & Impairment Testing, Employment Law Issues, Federal Workers Compensation, Implementation and Rolling Out Your Program, Management Commitment, Professional Development Issues, Return to Work and Transitional Duty, Seminars and Courses |

 

 

The Almaraz/Guzman issue was whether the Labor Code allowed for deviation from a "strict" application of the descriptions, measurements, and percentages in the AMA Guides for determining impairment. The Court of Appeal in Guzman, now the final statement of law, said yes. (WCxKit)

 

 

In summary, the Court of Appeal said,

 

 

 "In order to support the case for rebuttal, the physician must be permitted to explain why departure from the impairment percentages is necessary and how he or she arrived at a different rating."

 

 

"That explanation necessarily takes into account the physician's skill, knowledge, and experience, as well as other considerations unique to the injury at issue."

 

 

"In our view, a physician's explanation of the basis for deviating from the percentages provided in the applicable Guides chapter should not a priori be deemed insufficient merely because his or her opinion is derived from, or at least supported by, extrinsic resources."

 

 

"The physician should be free to acknowledge his or her reliance on standard texts or recent research data as a basis for his or her medical conclusions, and the WCJ should be permitted to hear that evidence."

 

 

"If the explanation fails to convince the WCJ or WCAB that departure from strict application of the applicable tables and measurements in the Guides is warranted in the current situation, the physician's opinion will properly be rejected."

 

 

"Without a complete presentation of the supporting evidence on which the physician has based his or her clinical judgment, the truer of fact may not be able to determine whether a party has successfully rebutted the scheduled rating or, instead, has manipulated the Guides to achieve a more favorable impairment assessment."

 

 

The Guides itself recognizes that it cannot anticipate and describe every impairment that may be experienced by injured employees. To accommodate those complex or extraordinary cases, it calls for the physician's exercise of clinical judgment to evaluate the impairment most accurately, even if that is possible only by resorting to comparable conditions described in the Guides."

 

 

The California Supreme Court clarified, in Baker v. WCAB, when the cost of living adjustments (COLA) take place for life pension and permanent total disability awards. The Court said the COLA starts on the January 1 when the injured worker starts receiving the life pension benefits or permanent total disability benefits.

 

 

This was a good result for employers; attorneys for injured workers wanted the COLA to start on an earlier date, which would have increased benefits.

 

 

The Court explained, "we conclude that, through the operative language of subdivision (c), the Legislature intended that COLA's be calculated and applied prospectively commencing on the January 1 following the date on which the injured worker first becomes entitled to receive, and actually begins receiving, such benefit payments, i.e., the permanent and stationary date in the case of total permanent disability benefits, and the date on which partial permanent disability benefits become exhausted in the case of life pension payments." (WCxKit)

 

 

California Attorney: Albert A. Navarra is a practicing lawyer from Newport Beach, CA, a Board Certified Specialist in Workers Compensation law, and a partner at Sapra & Navarra, LLP. Navarra is a frequent speaker about workers compensation issues, and has represented employers in the area of workers compensation for over 10 years. He is also an expert in constitutional law, the author of The Elements of Constitutional Law, and a frequent guest on radio stations across the country. He can be reached at: (866) 384-4891 or Albert@snworkcomp.com.

 

 

WORK COMP CALCULATOR: http://www.LowerWC.com/calculator.php

MODIFIED DUTY CALCULATOR:  http://www.LowerWC.com/transitional-duty-cost-calculator.php

WC GROUP: http://www.linkedin.com/groups?homeNewMember=&gid=1922050/

SUBSCRIBE: Workers Comp Resource Center Newsletter

 

Posted in California Workers Comp, Legal Doctrines |

California allows the workers compensation insurers and self-insured employers to utilize a Medical Provider Network (MPN) for the treatment of on-the-job injuries and work-related illnesses. The MPN is an association or network of clinics, physicians, hospitals and other medical providers – under contract with the MPN – who treat workers compensation injuries and occupational illnesses.  The advantage of the MPN to the employer is the employee is treated by a medical provider who specializes in work-related injuries.

Some practitioners have noted with criticism, however, that not all doctors in the network are well-qualified and further indicate that "almost  any physician who is willing to take a discount" can get on the panel; therefore, it is important for employers to make sure that the doctors in their networks understand workers compensation, know how to bill at the OMFS (official medical fee schedule), know how to write reports and return injured workers to modified work. Physicians who are not experienced in the nuances of workers compensation may also not know how to close a case appropriately: Released as Cured; Pre-Injury or Permanent & Stationary / MMI.

 

California MPNs are designed to provide services throughout the state. It is customary for the MPN to offer:
 

1.      A primary care physician within 15 miles or 30 minutes of the employee's residence or job site.

2.      All other medical services within 30 miles or 60 minutes or the employee's residence or job site.

3.      Emergency medical care services.

4.      Medical care in rural areas (they have alternative distance and time standards and, in some situations, allow out-of-network medical providers or non-contract medical providers).

5.      Medical care for the employee who is working or traveling outside of their home geographical area (but still within the State of California.)  (WCxKit)

 

 

 

The employer has the opportunity to direct the care for 30 days with or without an MPN, but the requirements must be strictly followed or the injured workers regains the right and ability to self procure his own medical provider at the end of 30 days; if the employer has followed the rules, they retain right to direct care for the life of the claim. Stated another way, if an employer has an MPN and did not follow the procedures at time of hire and again at time of injury they lose the right of control. The employer can direct care for the first visit and if they have complied with requirements for providing the employee with MPN information and a list of providers at the time of hire and again at the time of injury they have control for the life of the claim.  If the employee is unhappy with the choice of a physician, they can elect to change doctors but must stay within the MPN.   

 

 

If the employee is unhappy with the first opinion, second opinion, and third opinion, the employee may file a request for an Independent Medical Review (IMR) with the California Division of Workers Compensation administrative director. The administrative director will assign an independent medical reviewer. The independent medical reviewer will conduct either a physical examination or a medical-records review. If the independent medical reviewer agrees with the employee, the employee can select a physician who does not have to be a part of the MPN. In this case, the employer/insurer is responsible for the medical care cost. The injured worker can request a “QME” (Qualified Medical Examination) and will be provided a panel of 3 to choose from in a given specialty or specialties.

 

 

Most MPNs will offer medical management in which a nurse case manager will work with the employee, the employer, and medical providers to get the employee back to work as quickly as feasible. Some MPNs also offer a vocational specialist who works with the employee to retrain them for another occupation when they are physically unable to return to their prior job.

 

 

An insurance company or self-insured employer can create their own MPN or join one of the MPNs that have already been established. The benefits to the employer who joins a MPN include:
 

1.      Lower medical cost – The MPN contracts with the medical providers for the cost of the medical fees which are lower than the Medical Fee Schedule used in California. On average the medical fees are approximately 10 percent lower through a MPN.

2.     Medical control throughout the claim – When an employer has a MPN and complied with the requirements, the employee must treat within the MPN throughout the life of the claim (with certain exceptions, see above) unless the employee has pre-designated their primary treating physician (the large majority do not). Employers need to make sure this information is provided to all new hires, at the time of hire. They need to be able to document compliance.

3.      Elimination of chiropractors and acupuncturists: if the employer has a MPN, the employee can only pre-designate a medical doctor or doctor of osteopath. Without a MPN, the employee can pre-designate their chiropractor or acupuncturist. However, the injured worker can under 4601 request chiropractic care or acupuncture within the MPN. If the MPN has no panel chiropractors or acupuncturists within the given geographic distance they can choose one outside the MPN. 

 

 

 

Posted in California Workers Comp, Medical Cost Containment & Managed Care, Medical Issues |

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Louis Umberto Santillan, 44, Chino Hills, worked for Hoffman in billing collections for API. He is charged with 141 felony counts of insurance fraud and faces a sentence ranging from two years up to 150 years in state prison if convicted. (WCxKit)

 

 

 

Posted in California Workers Comp, Fraud and Abuse, Medical Cost Containment & Managed Care |

When you get a “bad” report from an agreed medical exam (AME) or a panel qualified medical exam (PQME) your first thought might be to depose the doctor. Your second thought should be, maybe not.

 

 

 

 

1.      Doctors rarely change their opinions. Factors such as ego, bias, facts, and law often prevent doctors from changing their opinions. Even in the face of skilled questioning, a doctor will usually not change an opinion of industrial causation to non-industrial, reduce impairment, or increase apportionment in a deposition.

 

 

2.      The doctor might increase exposure. As your defense attorney is trying to reduce exposure, the applicant's attorney is trying to increase it! The applicant's attorney will probably try to rebut the standard AMA Guides rating with an Almaraz rating. And he or she may push for more medical-legal referrals.

 

Q: Dr. Ortho, my client completed your questionnaire, correct?

A: Yes.

Q: Did my client indicate complaints on the questionnaire outside your field of expertise?

A: Yes.

Q: What were those complaints, Dr. Ortho?

A: The questionnaire indicated complaints of anxiety, depression, difficulty sleeping, and sexual difficulties.

Q: You also took my client's medical history, personally, correct?

A: I did.

Q: During this interview did my client again complain of anxiety, depression, difficulty sleeping, and sexual difficulties?

A: Yes.

Q: Complaints of anxiety and depression fall within the specialty of psychiatry, correct?

A: Of course.

Q: Sleep problems could indicate neurological issues, correct?

A: Yes, that is correct.

Q: And sexual problems may indicate a disorder regarding internal medicine, correct?

A: Yes.

Q: You just indicated that all of these complaints fall outside the field of your expertise, correct?

A: That is correct, counsel.

Q: Referrals in psychiatry, neurology, and internal medicine would be required to fully address these complaints, correct?

A: Yes, that would seem reasonable.

 

 

Congratulations, you just bought three medical-legal examinations and untold additional exposure!

 

 

3.      If it is broken, why fix it? AMEs and PQMEs often write reports that provide industrial-causation or high-permanent disability but are not substantial medical evidence. There are many reasons why a report is not substantial medical evidence. Expert attorney advice is sometimes needed to reveal these flaws. But once the flaws are revealed, it is important to remember that it is the applicant's burden to prove industrial causation and the extent of impairment (LCS 3202.5). It is not the employer's burden. Hence, if a report is not substantial medical evidence, deposing the doctor may just give applicant's attorney and the doctor a chance to fix a bad report and make it substantial medical evidence.

 

 

4.      Time and money. A doctor deposition will probably cost more than $1,000 in doctor and defense attorney fees. And it will add several months to the life of the case.

 

 

5.      Maybe you can settle the issues. Use your knowledge and skills to negotiate, compromise, and settle the issues you have with the AME or PQME report. However, be careful not to reveal too much. Do not show all your cards. If you do not settle, you want to close discovery and set the case for trial, with the expectation that the judge will not base an award on reports that are not substantial medical evidence. If you tip your cards during negotiations, the applicant's attorney may decide that he needs to depose the doctor so he can fix the report and make it substantial medical evidence.
 

 

Important note: There are cases in which you should depose an AME or Panel QME. Nothing here is intended to imply you never need to. But you should consider the factors above before you set the next AME or PQME deposition.

 

California Attorney: Albert A. Navarra is a practicing lawyer from Newport Beach, CA, a Board Certified Specialist in Workers Compensation law, and a partner at Sapra & Navarra, LLP. Navarra is a frequent speaker about workers compensation issues, and has represented employers in the area of workers compensation for over 10 years. He is also an expert in constitutional law, the author of The Elements of Constitutional Law, and a frequent guest on radio stations across the country. He can be reached at: (866) 384-4891 or Albert@snworkcomp.com.

Posted in California Workers Comp, Legal Doctrines, Medical Cost Containment & Managed Care |

 

 

The DOT and BBB are calling on businesses nationwide to adopt distracted driving policies as part of their employee culture. A strong distracted driving policy assists companies in saving lives, decreasing time lost from work because of accidents and injuries, reducing insurance premiums, and saving money. (WCxKit)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Federal Railroad Administration (FRA) banned rail employees from using cell phones or other electronic devices on the job following a September 2008 Metrolink crash in Chatsworth, California that killed 25 people. (WCxKit)

 

 

 

 

 

Posted in California Workers Comp, Legal Doctrines, Safety and Loss Control |