§ 925.20 Establishment and membership.
§ 925.21 Term of office.
§ 925.24 Failure to nominate.
§ 925.25 Qualification and acceptance.
§ 925.31 Compensation and expenses.
§ 925.45 Production research and market research and development.
§ 925.51 Recommendation for regulation.
§ 925.52 Issuance of regulations.
§ 925.53 Modification, suspension, or termination of regulations.
§ 925.54 Special purpose shipments.
§ 925.55 Inspection and certification.
§ 925.62 Right of the Secretary.
§ 925.64 Proceedings after termination.
§ 925.65 Effect of termination or amendment.
§ 925.66 Duration of immunities.


The claimant was represented by Kevin W. Coombes, Esq., McCarthy, Schuman & Coombes, 61 Russ Street, Hartford, CT 06106.
The respondent was represented by Philip Schulz, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the November 11, 2006 Finding and Award of the Commissioner acting for the Eighth District was heard June 15, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the November 6, 2006 Finding and Award of the Commissioner acting for the Eighth District, arguing on appeal that the trier erred by authorizing three-level disc replacement surgery. We remand the trial commissioner’s decision after clarifying the standard of scientific evidence needed to approve an unconventional surgical procedure.
The claimant injured her low back on July 2, 1985. She has treated with and been tested by many doctors, but has not had back surgery, which the respondent declined to authorize in 1987. In 2003, she was referred to Dr. Yue for consideration of disc replacement surgery, and was diagnosed with degenerative disc disease (DDD) at three levels. Dr. Yue favored surgery, but advised the claimant that it would have to be delayed until the Food and Drug Administration (FDA) approved the ProDisc device. Dr. Zack, a family practitioner who had treated the claimant on many occasions, agreed with Dr. Yue’s surgical recommendation. Dr. Lange, the respondent’s examiner, opined that the claimant was not a good candidate for surgery, and questioned the lack of FDA approval for ProDisc usage. He believed that the claimant currently has a sedentary work capacity.
The claimant testified that her injury has caused her intractable pain, difficulty walking, and numbness in her legs. She has not worked since low back symptoms forced her to leave her part-time job as a bus dispatcher in 1997. According to the medical reports in evidence, she has been relying for many years on supervised doses of pain medication, including narcotics such as OxyContin, morphine, and transdermally-delivered fentanyl, and she has developed depression and obesity as a result of chronic pain. See, e.g., February 24, 2005 report of Dr. Zack, Claimant’s Exhibit M. If nothing is done to alleviate her constant low back pain, she (at age 46) believes that she will soon need a wheelchair, and will never be able to work. The trier noted that she appeared to be physically uncomfortable sitting through the formal proceedings, and has undergone a gastric bypass to facilitate weight loss in preparation for surgery. In his conclusions, the trier found that the opinions, objective testing and surgical recommendation of Dr. Yue were reasonable and credible, and authorized him to perform the disc replacement procedure at his Yale medical facility. The respondent has petitioned for review from that decision, and has also filed a Motion to Submit Additional Evidence.
The additional evidence, a deposition of Dr. Yue that was taken on February 8, 2007, is offered in response to a February 13, 2006 note from Yale Orthopaedics to the claimant’s attorney that was admitted over the respondent’s objection, which the trier described as “appear[ing] to confirm that the use of ProDisc hardware has been approved by the FDA.” Findings, ¶ 19.1 According to the respondent’s counsel, the note2 was handwritten on a fax cover sheet, and was “an unsigned and unauthenticated hearsay statement from someone named ‘Laura’ in Dr. Yue’s office,” rather than a medical report. Motion, p. 1. Counsel further explains that Dr. Yue was not deposed prior to the formal hearing because the respondent had already offered evidence that the proposed three-level surgery had not been approved by the FDA, and counsel did not expect the fax cover sheet to be admitted into evidence. Dr. Yue’s deposition testimony is being offered to confirm that the FDA has not approved multi-level disc replacement surgery.
We now move forward on the factual premise that the trial commissioner approved the claimant’s request for three-level disc replacement surgery after finding that (1) the ProDisc device that Dr. Yue intends to use has been approved by the FDA for use at one level, and (2) it has not been approved by the FDA for use at three levels. The respondent argues that the trier exceeded his authority by finding that this surgical procedure was reasonable and necessary even though it has not been FDA approved, it carries with it significant cost and health risks, and a private health insurer would be entitled to deny this procedure as experimental under § 38a-483c(b) and § 38a-513b(b).
The Workers’ Compensation Act is a statutory compromise of legal rights that governs injuries arising out of and in the course of employment. Klapproth v. Turner, 156 Conn. 276, 279 (1968). It requires the employee to surrender the common-law right to sue the employer for damages in favor of “a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.” Pietraroia v. Northeast Utilities, 254 Conn. 60, 74 (2000), quoting Middletown v. Local 1073, 1 Conn. App. 58, 65 (1983), cert. dismissed, 192 Conn. 803 (1984); Casey v. Northeast Utilities, 249 Conn. 365, 378-79 (1999). Insofar as is possible, the Act seeks to restore the injured employee to the status of a healthy, productive member of society. Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 64, 232 CRD-1-83 (June 19, 1984).
Upon learning of an injury, § 31-294d C.G.S. requires an employer to furnish medical and surgical aid “as the physician or surgeon deems reasonable or necessary.”5 In general, we have defined reasonable and necessary medical care as “that which is curative and remedial. Curative or remedial care is that which seeks to repair the damage to health caused by the job even if not enough health is restored to return to work.” DeFelippi v. Wal-Mart Stores, Inc., 4349 CRB-5-01-1 (January 15, 2002)(citation omitted). This may include preventative care; Doe v. Stamford, 241 Conn. 692 (1997)(police officer exposed to infectious diseases was entitled to reasonable testing and treatment); and therapy designed to eliminate pain or prolong life, even if there is a strong chance that it will not be effective. See, e.g., Thomas v. Mohegan Sun Casino, 4754 CRB-2-03-11 (February 18, 2005) (intradiscal electrothermal surgery on torn disc annulus confirmed despite questions about its effectiveness); Irizarry v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002) (estimated 60% chance that authorized back surgery would improve patient’s quality of life); Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001) (epidural steroid injections allowable even if estimated efficacy rate was only 5%). The reasonableness of treatment also depends on the circumstances. Given the invasiveness, novelty, cost and degree of risk inherent in a three-level disc replacement, a commissioner should weigh the evidence carefully before approving it as “reasonable” and “necessary.” “Whether a proposed surgical procedure is reasonable . . . is a question of fact for the commissioner to resolve.” Pagliarulo v. Bridgeport Machines, Inc., 20 Conn. App. 154, 158 (1989). “ Though medical evidence takes center stage in making that decision . . . the trier may also consider surrounding circumstances, such as the claimant’s age, medical history, the effectiveness of prior treatment, and as stated in [Acquarulo v. Botwinik Bros., Inc., 139 684, 690 (1953)], whether the procedure involves real danger and suffering without fair assurance of improved or restored health.” Jolicoeur v. Duncklee, Inc., 5150 CRB-2-06-10 (November 8, 2007).
Once a device is being sold legally, the FDA’s approval to use it in a particular surgical procedure could be used as evidence that said use is medically viable.8 See note 6, supra. However, such a use-specific marketing approval is not a prerequisite to identifying a proposed medical procedure as “reasonable and necessary,” given the purpose of the FDA and the scope of its authority. Once a device has been FDA-approved, “off-label” uses often emerge that vary from the specific use cleared by the FDA. Washington Legal Foundation v. Henney, 202 F.3d 331, 332 (D.C. Cir. 2000). Although a manufacturer may not introduce a device into interstate commerce with the intent that it be used for an off-label purpose; 21 U.S.C. § 331(a); it is understood that “off-label” usage of medical devices is “an accepted and necessary corollary of the FDA’s mission to regulate in this area without directly interfering with the practice of medicine.” Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 350 (2001)9; Washington Legal, supra, 332-33; Weaver v. Reagen, 886 F.2d 194 (8th. Cir. 1989)(FDA non-approval of labeling for a particular use is not always indicative of uses of product that are considered appropriate within the medical and scientific community).
“A physician may prescribe a legal [device] to serve any purpose that he or she deems appropriate, regardless of whether the [device] has been approved for that use by the FDA.” Washington Legal, supra, 333. This principle is codified in 21 U.S.C. 396, which states that nothing in the Food, Drug and Cosmetic Act “shall be construed to limit or interfere with the authority of a health care practitioner to prescribe or administer any legally marketed device to a patient for any condition or disease within a legitimate health care practitioner-patient relationship.” Manufacturers remain prohibited from promoting unapproved uses for legally marketed devices.10 See, e.g., Ortho Pharmaceutical Corp. v. Cosprophar, Inc., 32 F.3d 690 (2nd Cir. 1994)(prescription drug that was FDA-approved only for treatment of acne could not be promoted for treatment of photodamaged skin, but FDA permitted doctors to prescribe it for this purpose).11 Thus, the absence of FDA approval for a physician’s proposed “off-label” use of a legally marketed device should not be treated as a proxy for a factual determination that the “off-label” use would be unreasonable, even though the FDA-approval history and labeling of the device may in some cases provide valuable evidence of fitness or unfitness for a suggested use.
The respondent also cites statutory standards in § 38a-483c and § 38a-513b C.G.S., which require individual and group health insurers in Connecticut to define the extent of their coverage for experimental treatments. A procedure, treatment or drug that has successfully completed a phase III clinical trial of the FDA may not be denied as experimental. Also, a terminally ill person with a two-year or lower life expectancy whose treatment is so denied may obtain an expedited appeal, which must be decided based on the medical efficacy of the treatment. The reviewer may consider whether the treatment has been approved by the National Institutes of Health or the American Medical Association, whether (if a drug) it is listed in one of several Drug Information and Evaluation guides, or whether it is currently in a phase III clinical FDA trial.
The Workers’ Compensation Act already recognizes the value of health care industry standards in many areas. This Commission’s fee schedule (see § 31-280(11)) and billing and payment guidelines (as per § 31-280(26)) utilize Current Procedural Terminology codes, which are widely used in the health care industry to describe medical and surgical services, and identify procedures that reflect contemporary medical practice and are commonly performed by physicians (while also creating a supplementary temporary coding system to track the use of new and emerging technologies). We have also been directed to implement in our fee schedule (as of April 1, 2008) the Medicare resource-based relative value scale and the Correct Coding Initiative used by the Centers for Medicare and Medicaid Services.13 Public Act 07-31. For a workers’ compensation commissioner, signs that a procedure has been incorporated into standard medical practice provide considerable assurance that it is considered scientifically viable and medically effective.14 See State v. Porter, 241 Conn. 57, 84-85 (1997) (general acceptance of scientific methodology will normally ensure that conclusions derived from that methodology are admissible in court), cert. denied, 523 U.S. 1058 (1998).
When a dispute arises in this forum over a less conventional diagnostic method or treatment, the commissioner must carefully examine the methodology underlying the proponent health care provider’s opinion. For example, assessments of permanent partial impairment are frequently based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, which are widely used by physicians and are considered “a well-established source of authority.” Safford v. Brockway, 262 Conn. 526, 533 (2003). Our law does not require doctors to follow the Guides; Id.; Napolitano v. Bridgeport, 4388 CRB-4-01-5 (September 6, 2002); and other methods of measuring impairment may be proposed. See, e.g., Ricigliano v. Rex Forge, 3476 CRB-6-96-11 (April 8, 1998)(claimant’s physician challenged restrictiveness of AMA method of measuring binaural hearing loss), aff’d, 53 Conn. App. 158 (1999), cert. dismissed, 252 Conn. 404 (2000). However, to qualify it as competent evidence, the proponent of another diagnostic method for assessing permanency must explain how it measures the percentage of loss of use of a scheduled body part. Safford, supra; Landry v. Light Metals Coloring Co., 4514 CRB-6-02-4 (April 3, 2003); see Barton v. Ducci Electrical Contractors, Inc., 4374 CRB-6-01-4 (March 25, 2002)(20% rating on several scheduled body parts improperly extrapolated rating for 20% loss of use of burned skin to each body part, without taking into account its overall function); Bilotta v. Connecticut Natural Gas Corp., 4106 CRB-1-99-8 (October 5, 2000) (permissible to assess effect of unscheduled body part on patient’s overall function prior to applying AMA guidelines).
Evaluating the appropriateness of a proposed medical treatment is a delicate task. While respecting the complex diagnostic and outcome-predictive skill that is central to a physician’s expertise, a workers’ compensation commissioner must assess the credibility of the evidence supporting the various treatment options and decide which is the most reasonable under all of the circumstances. See Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). In doing so, the trier has a lot of latitude. The ordinary rules of evidence are not binding in this forum, allowing a commissioner to make inquiry through testimony and records in the manner most likely to ascertain the parties’ rights. Section 31-298. Further, Connecticut Code of Evidence § 7-4 itself allows a physician’s expert opinion to be based on facts or data from outside sources, as long as that type of data is reasonably relied on by other physicians as a foundation for opinions. Carusillo v. Associated Women’s Health Specialists, 72 Conn. App. 75, 86 (2002)(citations omitted); see also, George v. Ericson, 250 Conn. 312, 317 (1999) (admissibility of physician’s opinion is governed by same standards that govern testimony of expert witnesses generally).
This procedural latitude regarding the mechanics of admitting evidence into the record does not diminish the quality of medical evidence needed to create a scientifically valid factual foundation, however. A commissioner is best able to decide whether an innovative surgical procedure is reasonably assured to restore a claimant’s health when the record contains a detailed evidentiary foundation. We therefore articulate this standard: in the case of a contested surgical procedure that is not well-established in the medical community, the evidence must include enough information for the trier to grasp the concepts and methods that support the procedure, and to anticipate that it will be effective for individuals comparable to the claimant. See Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 173, 180 (2004)(requiring case-by-case assessment of evidentiary admissibility for cervical cancer “doubling time” evidence in negligence action). Just as trial courts are expected to do more than merely rely on an expert witness’ belief that a methodology is reliable; Id., 182, citing State v. Porter, 241 Conn. 57 (1997); a commissioner must also take steps to verify that a physician’s methodology is reliable, and relevant to the case. The novelty of an unconventional and controversial suggestion for treatment will not render the underlying medical opinion incompetent if it is derived from a valid scientific method, even if other valid methodologies lead to contrary recommendations. See Porter, supra, 81-83 (1997)(rejecting admissibility test for scientific evidence premised solely on “general acceptance” in relevant scientific community, in favor of test articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). As always, the trier of fact need not explain why one methodology is more persuasive than another. See Admin. Reg. § 31-301-3 (finding should not contain reasons for trier’s conclusions, which better suit a memorandum of decision).
Drawing from our opinion in Cabral v. Metropolitan District Employees, 3770 CRB-1-98-2 (May 13, 1999)(commissioner adopted opinion on permanency based on a controversial diffusion capacity test), and our Supreme Court’s opinion in Porter, supra, we observe that our courts do not use a generic, mechanical test to assess the admissibility15 of scientific evidence, instead favoring a flexible, overarching approach using factors whose relevance varies on a case-by-case basis. Porter, supra, 80; Maher, supra, 168. In the workers’ compensation setting, methodological issues that are relevant to the scientific validity of evidence might include the quality of testing and peer review given to the reasoning or technique, its known and potential rate of error, to what degree conclusions rely on subjective assessments rather than objectively verifiable criteria, and the background and reputation of the doctor. This is not a checklist. Other factors may be relevant in addition to, or in lieu of, these factors, depending on the specific context.16 Of course, it is up to the parties to provide evidence supporting, challenging, or comparing proposed theories of treatment in order to establish a factual record. A trial commissioner is not expected to spontaneously develop critical methodological analyses that would help evaluate the scientific methods that underlie this type of evidence.
Here, several doctors testified or implied that the concept of three-level disc replacement surgery was valid. Both Dr. Yue and Dr. Zack recommended it for the claimant as a remedy for discogenic pain, while Dr. Lange expressed support for the concept of three-level artificial disc replacement and the notion that synthetic discs help prevent degeneration at adjacent disc levels by maintaining motion, even though he doubted it would be effective for this claimant. Respondent’s Exhibit 1, February 28, 2006 Transcript, pp. 18, 30-31. None of the doctors directly discussed studies reporting on multiple-level disc surgery except for Dr. Yue, who primarily focused on the results of the FDA approval process. He stated on March 8, 2006 that, upon FDA approval for single-level use, it would be acceptable to use the ProDisc in “off-label” fashion if the option exists. Claimant’s Exhibit K.
Dr. Yue also stated that two-level lumbar disk replacement would be officially approved within 16 months (as that procedure was the subject of a multicenter FDA study concurrent to the single-level ProDisc replacement study), while “[t]hree-level lumbar disk replacement will not be officially approved for approximately 25 years until the downgrade FDA classification occurs on the ProDisc device itself.” Id. We observe that, to date, the FDA has not approved two-level lumbar disk replacement with the ProDisc. See n.4, supra. Because the trier did not indicate that he was relying on this assertion as a factual underpinning of his approval of the three-level procedure, that discrepancy is not reversible error in and of itself. It remains part of the larger context, however, insofar as it fails to reflect the presence of clinical evidence supporting this use of the ProDisc.
In his March 28, 2006 report, Dr. Yue also referred to his own journal articles (which were not in evidence) demonstrating that ProDisc could be used at up to five levels in one person. Claimant’s Exhibit K. An expert witness may refer to outside studies in forming an opinion; Carusillo, supra; which, in this case, would simply be an extension of Dr. Yue’s own professional opinion, the studies being his own. The substance of the articles was not in evidence. On May 3, 2006, Dr. Yue reported that the ProDisc had been provisionally approved for single-level usage between L3 and S1, and that he could use it at multiple levels as long as he thought it would be medically beneficial for the patient, and she consented to bear the additional risk due to multilevel surgery. Claimant’s Exhibit L. Dr. Yue also supported the practice of multi-level disc replacement surgery by opining that individuals whose MRI appearance was similar to that of the claimant had tended to do well following the surgery. Claimant’s Exhibit G.
There is no discussion of other clinical evidence addressing the soundness of the multiple-level disc replacement procedure. A peer review report by a neurosurgeon, Dr. Dila, asserts that three-level lumbar artificial disc replacement is not indicated, because it is not approved by the FDA and is not supported in clinical trials. Respondent’s Exhibit 2. However, the report does not say to which clinical trials Dr. Dila is referring, or if he questions the procedure because no three-level trials have been conducted. Claimant’s Exhibit O is a printout of an article from the Spine-health.com website. It describes the ProDisc and discusses two studies that support the effectiveness of the device. There is no information about the authors, and the exhibit itself contains a disclaimer stating that the information available on Spine-health.com “is not intended as a substitute for medical professional help or advice.” Despite the principle that “[e]vidence is admitted not because it is shown to be competent, but because it is not shown to be incompetent;” Higgins v. Karp, 243 Conn. 495, 505 (1998); and the absence of a formal hearing transcript to tell us how the parties approached the admission of this exhibit, we cannot read this article as being an authoritative source of information without evidence to back up that authority. Thus, the article does not serve as competent expert scholarship.
On review, this board must be able to identify scientifically tenable reasoning in the record that supports the medical evidence. Beyond that, we defer to the trier’s factfinding discretion. Cabral, supra. The record in this case leaves many doubts about the proposed surgical intervention, there being little evidence to show the clinical success of multi-level artificial disc replacement in treating discogenic back pain, both generally and in a workers’ compensation context. Compare Jolicoeur, supra (testimony of Dr. Yue raised grounds supporting finding that proposed four-level lumbar disc replacement procedure was too risky). To enable the trier to evaluate this surgery with confidence and protect the claimant’s interests, the record must be strengthened with scientifically sound evidence supporting the procedure, as we have set forth in part II of this opinion. Currently, there is insufficient evidence to support the trier’s conclusion in ¶ c authorizing surgery. We thus order a remand for the limited purpose of addressing the scientific validity of three-level disc replacement surgery for individuals comparable to the claimant, which will demand the introduction of scientifically competent evidence. If evidence favoring the procedure is found to be methodologically sound and credible, the claimant’s surgery shall be authorized, based on the trial commissioner’s findings.
To that end, the subordinate findings regarding the claimant’s medical condition stand, as they are supported by Dr. Yue’s reports. He reported in 2003 that the claimant’s MRI showed DDD at L3-4, L4-5, and L5-S1, with early dessication (hydration loss) and minimal loss of disc height. The claimant described her pain as constant and interfering with normal life activities, following years of ineffective conservative treatment. Claimant’s Exhibit C. Dr. Yue opined that claimants with her MRI appearance had tended to do well following disc replacement surgery. Id. He also stated that she had been informed of the risks of the surgery, such as nerve damage, pain, paralysis, reoperation and hardware failure. Claimant’s Exhibit J.
Though Dr. Lange stated that he opposed operating on this claimant based on her heavy narcotic use, her pain at L2-3, and his belief that her functional capacity would not change; Respondent’s Exhibit 1, pp. 12-20; other reports counter those opinions. Dr. Yue explained that the lumbar discogram indicating substantial pain at L2-3 was not corroborated by the MRI, indicating that the L2-3 disc could be rehabilitated by disc replacement at the lower three levels. Claimant’s Exhibit I. The lumbar spine CT scan also identified only mild degeneration at L2-3, with more severe degeneration at lower discs. Claimant’s Exhibit G. Dr. Yue further opined that the claimant would return to work six to eight weeks after the operation. Claimant’s Exhibit C. As for narcotic use, Dr. Zack opined that the surgery would minimize the claimant’s need for chronic medications that were potentially damaging to her liver. Claimant’s Exhibit M. Dr. Zack also stated on August 14, 2006 that time was of the essence regarding surgery due to risk of osteoporosis because of premature ovarian failure. Claimant’s Exhibit N. These issues fell squarely within the trier’s discretionary authority to resolve disputes between physicians, and we cannot reverse such credibility assessments on appeal.
4 As an evidentiary matter, we note that federal statutes and regulations issued thereunder may be the subject of judicial notice by a court of appeal. Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 246 (1987); Powers v. Powers, 186 Conn. 8, 10 (1982). In turn, 44 U.S.C. § 1507 provides that the publication of a document in the Federal Register is sufficient to give notice of the contents of that document to anyone subject to or affected by it, and “shall be judicially noticed.” On January 26, 2007, at Volume 72, p. 3863 of the Federal Register (Dept. of Health and Human Services, Centers for Medicare and Medicaid Services), the FDA published a list of products whose pre-market applications had been approved by the agency. That list includes the application by Synthes Spine Co. for the ProDisc-L Total Disc Replacement, which was approved on August 14, 2006.
The publication also explains, “In the Federal Register of January 30, 1998 (63 FR 4571), FDA published a final rule that revised 21 CFR 814.44(d) and 814.45(d) to discontinue individual publication of PMA approvals and denials in the Federal Register. Instead, the agency now posts this information on the Internet on FDA’s home page at http://www.fda.gov. FDA believes that this procedure expedites public notification of these actions because announcements can be placed on the Internet more quickly than they can be published in the Federal Register, and FDA believes that the Internet is accessible to more people than the Federal Register.” 72 Fed. Reg. pp. 3863-64. The regulations now provide that the FDA publish a quarterly list of available safety and effectiveness summaries of PMA approvals, with the public being directed to www.fda.gov/cdrh/pmapage.html for more detailed information.
16 As an example of an in-depth critique of methodology, we refer to CMS’ published national coverage determination for lumbar artificial disc replacement discussed in n.8, supra (though we do not rely on its findings). [We note that CMS must disclose the factors it considers in making NCDs by making guidance documents publicly available, which CMS does through the Internet. 42 U.S.C. § 1395y(l)(1); documents available at http://www.cms.hhs.gov/MedicareCoverageGuideDocs/] An NCD may entail consultation with outside technological or clinical experts, and a public comment period is provided following the Internet-based publication of an NCD draft decision. 42 U.S.C. § 1395y(l)(2)-(4).] When CMS set out to determine if the ProDisc was a reasonable and necessary treatment for Medicare patients with chronic low back pain caused by DDD, its first step was to assess the strength of published clinical studies by using methodological criteria that rate (1) the scientific validity of findings asserting a causal connection between treatments and outcomes, and (2) the absence of study biases. Appendix A: General Methodological Principles of Study Design, located at http://www.cms.hhs.gov/determinationprocess/downloads/id197d.pdf (last visited December 18, 2007). Techniques promoting the internal validity of a study include randomized allocation of patients to an intervention or control group; contemporaneous control groups rather than historical controls; prospective rather than retrospective studies; larger sample sizes; preventing patients and investigators from knowing which group they have been assigned to, especially when subjective outcomes such as pain are being measured; elimination of selection bias regarding eligible participants; elimination of detection bias in collecting data; avoidance of attrition bias (patients who do not complete the study); and elimination of co-interventions that may confound the study. Id.


K.S.A. 41-308(b) prohibits liquor retailers from offering or allowing another to offer automatic teller machine services in or from the licensed premises. Cited herein: K.S.A. 41-308; L. 1992, Ch. 169, § 1; L. 1987, Ch. 182, § 18 and Ch. 292, § 25; L. 1971, Ch. 173, § 1; K.A.R. 14-3-15 (revoked May 1, 1988); 14-10-11; 14-13-13.
You request our opinion regarding the legality of placing automatic teller machines (ATMs) in licensed retail liquor stores. You question whether it makes a difference that such machines are not actually offering any product for sale, but rather are providing only a service.
"(4) distribute to the public, without charge, consumer advertising specialities bearing advertising matter, subject to rules and regulations of the secretary limiting the form and distribution of such specialities so that they are not conditioned on or an inducement to the purchase of alcoholic liquor."
"A retailer shall not permit any other person to use the licensed premises for the purpose of carrying on any business activity other than the sale of alcoholic liquor."
We believe the latter discussion to be the actual holding in the case and therefore do not feel bound by the dicta indicating that the only types of services prohibited by K.S.A. 41-308 are those that are similar to the inducements listed in K.A.R. 14-13-13(g). In any event, K.S.A. 41-308 and the Division's regulations have been significantly amended subsequent to the Court's decision in Willcott. Most notable among these amendments were the Legislature's addition of a specific exception to K.S.A. 41-308 allowing refrigeration or chilling of wine and, at a later date, any alcoholic liquor,(6) the exception for charging a delivery fee for delivery of liquor to other licensees,(7) the exception for sale of lottery tickets,(8) and the exceptions allowing retailers to include in the sale of liquor any goods included by the manufacturer in packaging the liquor and to distribute free consumer advertising specialties.(9) Clearly the Legislature intends the terms "any service" and "thing of value" to mean more than just inducements similar to gifts, prizes, premiums or rebates.
In Attorney General Opinion No. 91-72, this office discussed the meaning of "any service" in the context of the Director's authority to further define the term by regulation. The opinion found that, as used in K.S.A. 41-308, the term "lacks concrete definition but logically prohibits acts done to assist or benefit the consumer." The opinion concluded that while the Director may adopt regulations to define the term, such regulations must conform to "the obvious legislative intent to curtail those items given to a consumer and those services provided to a consumer." Absent further definition by statute or lawfully crafted regulations, "licensed retailer's can only provide the service of selling lottery tickets and charging a fee for delivery to a club, drinking establishment, or caterer. No other service whatsoever is allowed."
Based on these authorities, it is our opinion that K.S.A. 41-308(b) presently prohibits the placement of an operable ATM in a licensed retail liquor store. A licensed retailer may neither directly offer the service an ATM provides, nor allow another to offer that service in or from the licensed premises.
1. See, e.g., K.S.A. 41-308(c), (d).
2. Willcott v. Murphy, 204 Kan. 640 (1970).
3. Revoked May 1, 1988, now codified at K.A.R. 14-13-13(g).
4. Willcott, 204 Kan. at 643.
6. L. 1971, Ch. 173, § 1(b); L. 1992, Ch. 169, § 1(d).
7. L. 1987, Ch. 182, § 18(b).
8. L. 1987, Ch. 292, § 25(c).
9. L. 1992, Ch. 169, § 1(b)(3), (4). See also K.A.R. 14-10-11(b) and 14-13-13(g).


text:
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This should be adjusted according to the number of months (whole or partial) spent in Norway. As long as you give the entry/departure dates in item 5.0. the Tax Office should calculate this for you. It is almost allways more advantageous to choose the minimum deduction than to specify real costs incurred.
A standard deduction for foreigners (skatteetaten.no) can be claimed by adding a line on page 2. The amount to enter is 10% of the amount in item 2.1. (not 2.1.1), limited to a maximum amount of NOK 40.000.
Note: The standard deduction cannot be claimed in combination with other deductions (e.g. child expenses, the doctorate deduction, mortgage interest payments, etc.) apart from the minimum deduction. It can not be used if you receive a EU Mobility Allowance or other scholarships intended to cover extra expenses while in Norway. Nor can it be claimed together with EEA commuter status.
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You may deduct PhD expenses (Skatteetaten) like printing costs, travel for the exam, and expenses for academics attending the "doctoral dinner".
Single parents should be in tax class 2 (from 2013 in tax class 1).
For married couples where one spouse has an income below NOK 43.350 (in 2012), it is advantageous to be taxed together with your spouse, i.e. be in tax class 2F or 1E. If the tax office has registered the marriage, the ID-number of your spouse will be shown at the top of page 1 together with your own number. For married couples, income is automatically handled in the most advantageous way for you, but not capital assets.
If you want to change you tax class, reqest this in item 5.0, giving the name and Norwegian ID-number of your spouse/child. Attach a copy of the marriage certificate or documentation that you are a single parent.
If you were a resident in the USA, Brazil, China, France, Hungary, Italy, Israel, or Turkey, before coming to Norway you may qualify for tax exemption. Details vary, and are specified in the tax treaties (regjeringen.no)with these countries (cf. USA art. 15, Brazil art. 20, China art. 20, France art. 21, Hungary art. 20, Italy art. 20, Israel art. 20, ). Also eligible are residents from Bangladesh, the former Jugoslavia, Kenya, Cyprus, Malawi, Malta, Morocco, Rumania, Sierra Leone and Zambia.
Note: it is difficult for Chinese citizens to meet the documentation requirements.
Non-tax-resident individuals do not need to list income and assets abroad. However we recommend that you in item 1.5.6 confirm that you had income and/or assests abroad, and then write a note in section 5.0.
Tax-resident individuals are subject to tax in Norway on their worldwide income and capital.
Income and assets abroad must always be listed.
If these are taxed in another country, give the details under item 5.0., e.g. "My income in Germany (ca. X kroner) and my bank assets there (ca. Y kroner) were taxed in Germany. Details and documentation can be provided if required." The tax office will have to decide if any or part of these incomes and assets are to be taxed in Norway.
The form Deposits in foreign banks (skatteetaten.no) may be used for listing foreign bank accounts and total amounts entered in item 4.1.9.
If you own property in Norway you should find the basis for the amount in item 4.3.2 listed on the tax-return. If not, you must list the neccessary information.
If the size of the living area is wrong, or missing, enter the correct number of square metres. The amount in item 4.3.2. will be changed automatically.
The property's tax value can be calculated with the Norwegian Tax Authority's housing calculator (skatteetaten.no) (Norwegian).

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art. 20


Both Medicaid and private payor dental claims audits are increasing around the country.
(December 18, 2017): As you may recall, in July 2017, the Department of Justice (DOJ) and the Department of Health and Human Services, Office of Inspector General (HHS-OIG), conducted the largest ever health care fraud enforcement action ever held on a single day. Two of the health care professionals arrested during this national “Takedown” were Michigan dentists, both of whom were alleged to have billed Medicaid for services not rendered. Unfortunately, as we will discuss in this article, examples of dental claims audits, investigations and prosecutions have become quite common.
In October 2017, Michigan’s Attorney General announced that his office had successfully apprehended a fugitive dentist that had been convicted in May 2017 of twenty counts of Medicaid fraud, six counts of health care fraud, and one count of racketeering. These incidents of fraud first arose after the dentist was “excluded” from participation in the Medicaid program in 2006. To get around the exclusion, he allegedly provided dental services to Medicaid beneficiaries and billed for his services under the identifying information of another dentist. Before he could be taken into custody, the defendant apparently fled to the Dominican Republic. He was captured by officials of the U.S. Marshal’s Service last October.
If you think that this is an isolated story about a sensational dental fraud case, think again. Just last week, the local news in Anchorage, Alaska spotlighted the fact that a local dentist who had been charged with Medicaid fraud was back in court. As the television anchor reminded her audience, this story first made national headlines after a video surfaced which showed the dentist allegedly performing a dental procedure on a sedated patient, while on a hoverboard.
Has there been a change in law enforcement’s focus with respect to dental providers? Is your practice now more at risk of a dental claims audit than ever before? These are the questions we will look at in this article.
I. Background – Insurance Coverage of Dental Services.
The Centers for Medicare and Medicaid Services (CMS) estimates that in 2016, health care spending increased 4.3% and cost approximately $3.3 trillion. Notably, approximately 4% of this $3.3 trillion was spent on dental services. The amount of money spent on dental services is more than what is spent on home health services and more than twice what is spent on durable medical equipment each year.
(12) where such expenses are for services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth, except that payment may be made under part A in the case of inpatient hospital services in connection with the provision of such dental services if the individual, because of his underlying medical condition and clinical status or because of the severity of the dental procedure, requires hospitalization in connection with the provision of such services.” (emphasis added).
While eligible Medicaid beneficiaries do, in fact, generally qualify for certain dental program services, both the individuals who qualify for coverage and the types of dental services under each program vary from state to state. Although the government-funded dental programs in each of these states may have unique coverage provisions, both law enforcement and Special Investigative Units (SIUs) working for private payors have successfully identified a number of common improper practices and schemes conducted by dental professionals.
II. Recent Dental Improper Billing Practices Pursued by the Government.
Collectively, both fraudulent and abusive billing dental care practices are illegal and may subject a dental provider to administrative, civil and / or criminal sanctions, fines, penalties and damages. The level of exposure faced is very fact-specific and will vary, depending on the specific dental program that has been defrauded, the conduct alleged and types of damages incurred by the payors and the beneficiaries.
A. Audits based on data-mining. The level of coordination and communication between Federal law enforcement investigators, State Medicaid Fraud Control Units (MFCUs) and private payors’ SIUs has grown to the point that they are now extraordinarily effective at sharing information regarding ongoing provider investigations, provider utilization practices, and emerging fraud schemes. Through data mining, they can tell with a high degree of accuracy how long it should take for you to perform all of the dental services you billed in a single day. They will also compare your billing patterns to those of your peers. If any of your billing practices or patterns appear to be irregular, they will initiate an audit.
B. Complaints. If you are billing the Medicaid program for services not rendered, you are placing both your financial livelihood in jeopardy and your personal liberty at risk. Under the provisions of the Affordable Care Act (ACA), if you fail to report and return an overpayment within 60 days, you are liable for damages and penalties under the Civil False Claims Act (FCA). The FCA has special “whistleblower” provisions that allow an individual to essentially step into the shoes of the government and file a case under seal against a wrongdoer. If the government intervenes and there is a settlement, the whistleblower can receive between 15% and 25% of the recovery. Essentially, this statute makes virtually every one of your employees a potential whistleblower. If you engage in improper Medicaid billing practices, one of them will eventually identify the wrongful conduct. Do you want to take risk? To make matters worse, the government is not restricted to only pursuing such a case under the civil False Claims Act. Depending on the facts, the government could also pursue the case criminally under 18 U.S.C. §1347 – Health Care Fraud or under 18 U.S.C. §669 – Theft of Embezzlement in Connection with Health Care.
Before moving on to the next category, it is worth noting that some incidents of “billing for services not rendered” may be inadvertent. For instance, if a patient comes in for a dental service that requires the performance of a multi-stage procedure (such as a crown, dentures or a root canal), most dental plans will not allow you to bill for the procedure until the date that the final stage of the multi-stage procedure is completed. It is important that you train your billing staff to check each payor plan prior to billing so that multi-stage procedures are billed in accordance with the requirements of each particular payor. If you aren’t sure how a payor treats such a situation, call the payor prior to billing the procedure or fully disclose the status of the stage of the procedure when you submit the claim.
2. Misrepresentation of a non-covered service. In some respects, this improper practice is nothing more than another form of “billing for services not rendered.” Simply put, in the cases we have seen where this has occurred, a dentist or dental practice has either purposely or erroneously characterized a non-covered dental service as a covered service. Keep in mind, the definition of a non-covered service varies from policy to policy. Additionally, the list of non-covered services under a specific policy may change from year-to-year. In any event, it is important that you regularly check to ensure that the services you are providing a patient qualify for coverage and payment.
3. Misrepresentation of the provider of the dental service. This type of billing error is still commonly found in both dental and medical practices around the country. In the cases we have seen, “fraud” wasn’t the reason for the underlying misrepresentation on the ADA Claims form. In most instances, it was a merely a matter of a credentialing delay. In other cases, dental practices appeared to believe that they were permitted to bill for the services under a concept similar to Medicare’s “Incident-To” rule. We will address each of these misconceptions.
A. Credentialing delays. Once again, it is essential that you understand the specific requirements under your payor agreement. For example, you are credentialed by PAYOR A, but you decide to hire another dentist. Until the new dentist completes the credentialing paperwork for PAYOR A, turns it in, and is accepted as a credentialed provider, more than likely you can cannot bill for his services a treating provider.
As the ADA Dental Claim Form above reflects, there are separate sections for the “Billing Dentist” and the “Treating Dentist.” The section titled Billing Dentist is meant to provide the individual dentist’s name or the name of the group practice that is responsible for billing. In contrast, the section titled Treating Dentist is meant to provide the name of the dentist who actually provided the dental services to the beneficiary, within the scope of his / her state licensure.
Unfortunately, we have seen situations where billing staff in offices were unaware of these rules. Since the actual treating dentist was not credentialed by a payor, they billed the services under the name and number of a dentist that was, in fact, credentialed by the payor. As you can imagine, with only a rudimentary review of a dentist’s services in a data-mining review, an auditor is likely to quickly determine that a problem exists. Depending on the payor and the specific facts in the case, a dental practice may be terminated from participation in the plan and may have to repay a significant overpayment to the payor. Both dentists involved in the misrepresentation may be referred to the State Dental Board for unprofessional conduct.
Although we have not seen a dental misrepresentation case of this type referred for criminal prosecution, it is important to remember that the ADA Dental Claims form is being electronically submitted to the health plan for payment. Depending on the facts, an aggressive prosecutor could argue that such conduct constitutes wire fraud. 18 U.S.C. §1343.
“42 CFR 410.32(3)(ii) Direct supervision in the office setting means the physician must be present in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure. It does not mean that the physician must be present in the room when the procedure is performed.”From a practical standpoint, there is no reason why this concept wouldn’t work in a dental practice setting. However, we have not found a similar provision incorporated in State Medicaid regulations or in State Medicaid Provider Manuals. Nor have we found it to be permitted by private payor dental plans. Therefore, we strongly recommend that you do not bill incident-to in the absence of express guidance from your payor that it is permissible to do so. Instead, take steps to ensure that your dentists and auxiliary staff are credentialed as soon as possible after entering on duty with your practice.
The ADA guidance does not make a distinction between whether a dental provider is an in-network or out-of-network participating provider. If your practice is a participating provider, your improper waiver of a patient’s co-payment or deductible would also constitute a breach of contract.
Under appropriate circumstances, a health care provider may waive a Medicare co-payment or deductible if a patient can show a bona fide financial hardship. However, care must be taken when waiving these amounts. The improper waiver of a Medicare co-payment or deductible could constitute a violation of the Federal Medicare / Medicaid Anti-Kickback Statute, and expose you and your practice to potential criminal liability. (See HHS-OIG’s 1994 Fraud Alert).
Unfortunately, this is a common occurrence, despite the fact that virtually every state Dental Practice Act has strict requirements governing both the level of supervision that must be exercised over subordinate staff and which tasks may not be delegated to unlicensed personnel.
B. Unlicensed personnel providing care as a result of an administrative error. This typically occurs when a licensee fails to pay their annual licensing fees in a timely fashion or fails to complete mandatory Continuing Dental Education (CDE) required by their State Dental Board. If you are performing dental procedures and your license has been administratively suspended, a reviewer will still deny each of the claims where you are listed as the treating dentist.
6. Unbundling. Fundamentally, when a health a care provider engages in “unbundling,” he / she takes a global code and breaks it down into its fundamental parts for billing purposes. The billing of the separate components then yields more than the billing of the single global code. For instance, in some States, the Medicaid dental coverage and payment rules in place require that cleanings, x-rays, and examinations be billed as part of a single visit. Similarly, some State Medicaid dental coverage payment rules require that x-rays, oral / facial images, and pre-orthodontic visits be billed as part of a comprehensive orthodontic code.
7. Upcoding. Billing for a dental service or procedure at a higher level than was actually provided is known as “upcoding.” An example of upcoding is illustrated by the August 2017 prosecution of a dentist out of Charleston, West Virginia who pleaded guilty to upcoding. According to the government, the defendant falsely billed Medicaid and its Managed Care Organizations (MCOs) for complex dental procedures (such as the extraction of impacted teeth), when in fact, he actually performed simple extractions. As a result of this false reporting, Medicaid and its MCOs paid the defendant dentist $172 per extraction of each tooth, rather than $80 per tooth for a simple extraction. The dentist further admitted that he falsely upcoded at least 7,490 tooth extractions, billing more than $1.3 million for those procedures. He further admitted that if those extractions were medically necessary, and if had actually performed the procedures he claimed, then he should have been paid only $599,200.
III. Don’t Wait Until You Are Facing a Dental Claims Audits – Review Your Practices Now!
Do you have an effective compliance program in place? How would respond to the following questions?
When was the last time you conducted an internal dental claims audit and examined whether the services you are providing fully reflect medical necessity requirements, are documented to meet the requirements of the payor, and are properly coded and billed? What did you find? Who conducted the audit, someone from your dental practice, or an outside dental consultant? Be sure and engage any outside dental consultant through legal counsel. Keep in mind, this is not a paper exercise. If legal counsel is not fully engaged and is not supervising the work, it is doubtful that the result of any review will be privileged. As a final point in this regard, keep in mind that any overpayments identified must be paid back, regardless of whether the results of the dental claims audit qualify as privileged.
When was the last time you conducted an audit of your dental business practices? Are your practices free of any possible violations of the False Claims Act or Anti-Kickback Statutes?
Have you fully implemented each of your obligations under HIPAA and HITECH? If subjected to an unannounced audit by the Office of Civil Rights or one of its contractors (yes, this can occur), will you be able to show that you are in compliance with all required security, privacy and technical mandates under HIPAA / HITECH?
Do you have an effective anonymous compliance reporting mechanism in place? Have you advised and trained your dental practice staff on their obligations to report improper billings or conduct to your practice’s Compliance Officer?
Are you screening your dental practice employees, contractors, vendors and contractors through all Federal and State exclusion databases?
Working through these steps (and others), can greatly reduce your overall level of regulatory risk and can assist your practice in implementing an effective compliance program. Need help? Give us a call. Our attorneys represent dental practices in both Medicaid and private payor dental audits. Moreover, we can assist you in assessing your current level of compliance so that you will be better prepared if your practice is audited in the future.
Robert W. Liles serves as Managing Partner at the health care law firm Liles Parker, PLLC. Our attorneys represent dentists and dental practices around the country in connection with Medicaid audits, private payor audits and State Dental Board actions. For a complimentary consultation, please give us a call. We can be reached at: 1 (800) 475-1906.
 As the reported notes, the defendant allegedly took in 31% of the state’s total Medicaid payments for IV sedation in 2016. Although not discussed, this very well may be how he was identified as a potential target – through data mining.
 A copayment waiver based on financial hardship is prohibited if it is not supported by a “good faith” assessment of the individual beneficiary’s financial need. Special Fraud Alert, 59 Fed. Reg. 65372-01, at 65375; 42 U.S.C. § 1320a-7a(i)(6); 42 C.F.R. § 1003.101. The “[r]outine use of ‘Financial hardship’ forms which state that the beneficiary is unable to pay the coinsurance” is insufficient. Special Fraud Alert, 59 Fed. Reg. 65372-01, at 65375.; A copayment waiver based on a failure to collect is prohibited if it is not preceded by a “good faith” collection effort. Special Fraud Alert, 59 Fed. Reg. 65372-01, at 65375; 42 U.S.C. § 1320a-7a(i)(6); 42 C.F.R. § 1003.101. The collection effort must be more than “token” and must be similar to efforts made to collect comparable amounts from non-Medicare patients. Medicare Claims Processing Manual, Ch. 23, § 80.8.1.


1. The following terms and conditions apply to the part of the online shops "www.radio-optimizer.de" of WarenZeichen Medien UG, represented by the CEO Markus Gilg, Bayern Straße 1, 86830 Schwabmünchen (hereinafter referred to as "Seller") concluded-down contractual relations between the vendor and its customers (hereinafter referred to as "Buyer").
2. Contracts are both with consumers and with entrepreneurs.
3. A consumer is any natural person who enters into a transaction for purposes which can be attributed mostly neither commercial nor its independent vocational activity.
4. In accordance with § 14 BGB is an entrepreneur, a natural or legal person or a legal partnership, in concluding a legal transaction in their commercial or independent professional activity. A legal partnership is a partnership, which is equipped with the ability to acquire rights and incur liabilities.
1. All questions in the context of the online shop of the seller to be acquired products, products and services no binding offers by the seller in the legal sense, but are themselves an invitation to offer to the customer.
2. After sending the order by the buyer of this immediately receives an e-mail, however, confirmed the receipt of the order acceptance of the offer in the legal sense represents. The acceptance of the offer, and hence the formation of the contract made by the shipment of the goods or a specific declaration of acceptance in writing (email, fax or letter).
1. All prices are total prices incl. VAT, plus any applicable shipping costs depending on the delivery type (see § 4) plus. Any applicable shipping costs as well as packaging costs.
2. The seller offers the following payment methods: PayPal, credit card or Sofortüberweisung. The seller provides the customer for the goods ordered an invoice that accompanies him upon delivery of the goods or approaching your mailbox.
1. Delivery is immediately after receipt or message via PayPal.
2. The delivery and payment of the seller are shown in the order form. The delivery date, please refer to the respective product description.
3. ( "Order Paid") on the last order page before submitting your offer you will receive again an overview of the essential characteristics of the goods, the total price of the goods, as well as all components associated as shipping and handling charges.
4. If the buyer is a consumer in terms of § 13 BGB, the shipping risk is borne solely by the seller. If the buyer is, however entrepreneurs who risk passes to the buyer when the seller has delivered the thing to the carrier, or otherwise determined to execute the dispatch person or institution.
The following cancellation policy applies only to consumers (see § 1 of the Terms and Conditions).
WarenZeichen Medien UG, Frauenstraße 7, 86830 Schwabmünchen, Germany.
Fax: +49 8232 9950624, email: info [at] radio-optimizer.de.
In the case of an effective cancellation the mutually received benefits are to be returned and any benefits (eg. As interest). Can you give us the performance received and benefits (for example, benefits of use) or partially or only in deteriorated condition or surrender, you will be obliged to pay compensation. For the deterioration and derived benefits, you must pay compensation only in so far as the benefits or the deterioration is due to a deal with the matter, beyond the consideration of the characteristics and functioning. By "testing the properties and functioning" means the testing and trying out the goods, as it is possible and common in a shop. Transportable items are to be returned at our risk. You have to bear the cost of returning the goods if the delivered goods ordered and corresponds to the price of the products does not exceed an amount of 40 euros or if you at a higher price the thing at the time of the revocation yet the return or a have provided contractually agreed partial payment. Otherwise, the return is free for you. Not parcel things are picked up. Obligations to refund payments must be fulfilled within 30 days. The period begins with the dispatch of your revocation or thing for us with their receipt.
The right does not apply to distance contracts for the supply of goods that are produced according to customer specifications or clearly tailored to personal needs or which are not suitable due to their condition for a return or can spoil quickly or whose expiration date has passed.
In the case of software downloads the right of withdrawal is excluded, because the software can be used and therefore can not be returned without residue.
1. Until full payment the delivered goods remain the property of the seller.
The seller retains title to the goods until full settlement of all claims from the ongoing business relationship. Before transfer of ownership of the goods is a pledge or security purposes is not permitted.
The purchaser is entitled to resell the goods in the ordinary course of business. In this case, the buyer assigns to the Seller already now all receivable in the amount of the invoice, which accrue to him through the resale to a third party. The seller reserves the right to collect the claim itself as soon as the buyer meets his payment obligations properly and is in default of payment.
When connecting and mixing of the goods, the seller acquires joint ownership of the new item in proportion of the invoice value of the goods to the other processed items at the time of processing.
The seller undertakes to release the securities he is entitled to their request insofar as the realizable value of the securities from the seller exceeds the claim secured more than 10%. The selection of the collateral to be released is incumbent upon the seller.
For our products, the statutory warranty rights shall apply if there is no deviation here under V. thereof.
1. If the customer is a consumer, the limitation period for defect liability claims for used goods is limited to one year from delivery of the item. The limitation of claims for damages for injury to life, limb or health based on an intentional or negligent breach of duty by the seller or by a deliberate or negligent breach of duty by a legal representative or agent of the seller remains unaffected. Furthermore, remains the limitation of claims for compensation for other damages based on intentional or gross negligence of the seller or on an intentional or grossly negligent breach of duty by a legal representative or agent of the seller, untouched. In addition to any liability under the Product Liability Act remains unaffected. In addition, the statutory provisions apply.
The limitation period for warranty claims is to entrepreneurs both for newly manufactured items and used items one year. Incidentally, here, the statutory provisions.
The buyer has to examine the goods in accordance with § 377 HGB immediately after delivery by the seller, to the extent possible in the ordinary course of business, and if a defect is to make the seller immediately display. If the buyer fails to notify us, the goods are considered approved, unless it concerns a defect which was not recognizable during the inspection. Shows later this deficiency, the announcement must be made immediately after the discovery. Otherwise the goods shall also in view of this defect. On the attitude of the rights of the buyer is sufficient to send the display. If the seller has fraudulently concealed the defect, so he can not rely on those provisions.
Select the products you want to order by clicking on the "shopping cart" button. By clicking the button "Checkout" to go to the next order step. You will receive an overview of your order: The selected products, shipping and billing address and contact information. This is added to the shopping cart your selection. You can use this selection to sending your order to change at any time, by changing the number of products, by clicking the button "Delete" to delete the selection or cancel the order process. Please log in with a username and password if you already have an account, otherwise please register as a new client. You'll also have the option of performing an order as a guest without their own account. Your data is collected, processed and used in compliance with data protection regulations. Any other use or disclosure to third parties. According to the customer and invoice information, please indicate the desired payment and shipping. Now check the selected shipping. Please read the Terms and Conditions and the Conditions carefully. You can only proceed with the order, if you agree to the terms and conditions under Revocation (checkmark). "Order fee" By clicking the button, you will send your order to us. Specify a legally binding offer.
2. Storage of contract after the contract as well as accessibility to the Customer.
The treaty text as well as your order information is stored by the seller. After completion of operations carried out by your order you will receive a clear order confirmation, in which all information is included on your order. Furthermore, the possibility to print out the text of the Treaty pressure capabilities of the browser. Your order data are also again separately in your sent email. In addition, the seller sends the purchaser at any time at the request of the Treaty provisions by e-mail.
Before submitting the order is at any time to correct your entries the way. This may on the one hand by the "back button" or carried out the "back arrow" of your internet browser. Corrections You can either correct directly on the individual product pages in the available entry fields. It is also possible within the framework of virtual shopping cart to update or delete individual products the products. All this correction possibilities are up to and including delivery of the binding offer on the button "Order Payment Paid".
The seller has not subject to codes of practice.
After sending the offer by the customer, it receives a confirmation email.
Complaints, in particular warranty claims must be directed to the seller.
The essential characteristics of the product, see the product description. This also applies to the validity of any of limited offers.
Optionally existing technical safeguards, limitations in interoperability or compatibility and function Weis content, refer to the respective product description.
The collection, storage, modification, transmission, blocking, erasure and use of personal information for the protection of your personal data in compliance with the applicable data protection regulations.
A transfer of your personal data to third parties only to the service partners involved in the framework of the contract, such as the staff responsible for payment matters and the staff responsible for the delivery logistics company. However, the volume of data transmitted is limited in the case of disclosure of your personal information to third parties to the minimum necessary.
You agree with the conclusion of the contract, to the processing and use of your personal data (for example, address) in accordance with the above instructions. However, they have the possibility of using to object at any time, without the need for other than the transmission costs according to the basic rates.
According to the Federal Data Protection Act you have a right to free information about your stored data and a right to rectification, blocking or erasure of data. We may ask you to consult with appropriate requests to the address listed in the provider identification. If the stored about you offered personal data are inaccurate, carried out an immediate correction, on a notice from you out.
Your privacy is guaranteed by the Federal Data Protection Act. One use is therefore permissible only if the Federal Data Protection Act or a legal provision authorizing it or consents, the person concerned.
(Or even have received any Age requirement) deliveries within Germany of film, PC and video games that have been marked with "no youth release pursuant to § 14 JuSchG" are to minors not possible. Before the shipment of the goods we require a valid ID card copy.
The contractual relationship between the seller and the customer and the respective terms and conditions, the law of the Federal Republic of Germany.


§ 186-2 Applicability; more restrictive provisions to prevail.
§ 186-4 Registration of real property required.
§ 186-5 Rental occupancy permit required.
§ 186-6 Fee for permit; exemption.
§ 186-7 Review of application; issuance of permit.
§ 186-8 Term of permit.
§ 186-9 Register of permits.
§ 186-10 Smoke and carbon monoxide detectors.
§ 186-12 Application for search warrant.
§ 186-13 Revocation of permit; appeals.
§ 186-14 Rental registration required.
§ 186-15 Confidentiality of rental registration.
§ 186-16 Broker's responsibility prior to listing.
§ 186-17 Broker's responsibility after renting.
§ 186-18 Penalties for offenses.
§ 186-20 Effective date; implementation.
Uniform construction codes — See Ch. 103.
Housing maintenance — See Ch. 148.
Zoning — See Ch. 263.
The Village of Brewster Board of Trustees has determined that there exist in the Village of Brewster serious conditions arising from rental of dwelling units that are substandard or in violation of the New York State Uniform Fire Prevention and Building Code, Multiple Residence Law, Village of Brewster Housing Code, Building Rehabilitation Code, Electrical Code, Fire Prevention Code, Plumbing Code and other codes and ordinances of the Village, are inadequate in size, overcrowded and dangerous, that such dwelling units pose hazards to life, limb and property of residents of the Village and others, tend to promote and encourage deterioration of the housing stock of the Village, create blight and excessive vehicle traffic and parking problems and overburden municipal services including services pertaining to potable water and wastewater disposal. The Village of Brewster Board of Trustees finds that current Code provisions are inadequate to halt the proliferation of such conditions and that the public health, safety, welfare and good order and governance of the Village will be enhanced by the enactment of the regulations set forth in this chapter, which regulations are remedial in nature and effect.
Editor's Note: See Ch. 148, Housing Maintenance.
Scope. This chapter shall apply to all rental dwelling units located within the Village of Brewster, whether or not the use and occupancy thereof shall be permitted under the applicable use regulations for the zoning district in which such rental dwelling unit is located, as in this chapter provided. Any dwelling unit, rooming house, rooming unit or any other premises subject to this chapter shall be presumed to be rented for a fee and a charge made if said premises are not occupied by the legal owner thereof. This chapter shall apply to all rental dwelling units located within the Village of Brewster, whether or not the use and occupancy thereof shall be permitted.
Applicability. The provisions of this chapter shall be deemed to supplement applicable state and local laws, ordinances, codes and regulations. Nothing in this chapter shall be deemed to abolish, impair, supersede or replace existing remedies of the Village, town, county or state or existing requirements of any other provision of local laws or ordinances of the Village or county or state laws and regulations. In case of conflict between any provision of this chapter and any applicable state or local law, ordinance, code or regulation, the more restrictive or stringent provision or requirement shall prevail. The issuance of any permit or the filing of any form under this chapter does not make legal any action or condition that is otherwise illegal under any other applicable legislation.
Building Inspector, municipally employed or appointed Code Enforcement Officer, police officer, Zoning Enforcement Officer, Sheriff or Fire Inspector of the Village of Brewster or other persons so appointed by the Village of Brewster Board of Trustees.
A structure or building, or part thereof, or an area, room or rooms therein, occupied or to be occupied by one or more persons as a home or residence.
The immediate family of the owner of a dwelling unit consists of the owner's spouse and their children, parents, grandparents or grandchildren.
A person or entity having legal title to a dwelling unit or units.
A dwelling unit established, occupied, used or maintained for rental occupancy.
All real property, whether commercial or residential and whether owner-occupied or otherwise, located within the Village of Brewster must be properly registered with the Building Department on a form provided therefor.
It shall be unlawful and a violation of this chapter and an offense within the meaning of the Penal Law of the State of New York for any person or entity who owns a dwelling unit in the Village to use, establish, maintain, operate, let, lease, rent or suffer or permit the occupancy and use thereof as a rental occupancy by someone other than the owner or his immediate family without first having obtained a valid rental occupancy permit thereof. Failure or refusal to procure a rental occupancy permit hereunder shall be deemed a violation.
The name, address and telephone number of the owner of the dwelling unit intended for rental occupancy; the street address and tax map designation (section, block and lot or lots) of the premises intended for rental occupancy or the premises in which the rental dwelling units intended for occupancy are located; a description of the structure, including the number of rental dwelling units in the structure; the number of persons intended to be accommodated by, and to reside in, each such rental dwelling unit; and the number of rooms, and the dimensions and use of each room, in the structure but outside of the rental dwelling units.
The names of each person presently residing in or occupying such premises intended for rental occupancy.
A site plan, drawn to scale, showing all buildings, structures, walks, drives and other physical features of the premises and the number, location and access of on-site vehicle parking facilities.
A copy of the certificate of occupancy or certificate of existing use.
Each application shall be executed by and sworn to by the owner of the premises or such person who operates such premises if other than the owner.
Notwithstanding the above, no rental occupancy permit shall be required for a residential care facility established under New York State guidelines.
A nonrefundable fee shall be paid upon filing the "registration for rental dwellings" in accordance with the Village fee schedule set from time to time by resolution of the Village of Brewster Board of Trustees.
The fee required by this section shall be waived for any applicant which demonstrates that it is a not-for-profit housing development corporation organized under the laws of the State of New York, and that it is providing housing for senior citizens or other designated special populations subject to income guidelines established by either federal or state regulation.
The Building Inspector shall review each application for completeness and accuracy and shall make an on-site inspection of the proposed rental dwelling unit or units. If satisfied that the proposed rental dwelling unit or units, as well as the premises in which the same are located, comply fully with all applicable state and local laws, ordinances, rules and regulations of the county and Village, and that such rental dwelling unit or units would not create an unsafe or dangerous condition or create an unsafe and substandard structure as defined in the Village Code or create a nuisance on adjoining or nearby property, the Building Inspector shall issue the permit or permits.
All permits issued pursuant to this chapter shall be valid for a period of two years from date of issuance.
It shall be the duty of the Building Department to maintain a register of permits issued pursuant to this chapter. Such register shall be kept by the tax map number, license number, receipt number, street address showing the name and address of the permittee, the number of rental dwelling units at such street address, the number of rooms in each such rental dwelling unit and the date of expiration of the permit for such unit.
No permit shall be issued until the Code Enforcement Officer shall inspect the rental dwelling unit to determine that it is equipped with a functioning smoke detection device, carbon monoxide detection device as well as any other safety device required under the New York State Uniform Fire Prevention and Building Code.
The Code Enforcement Officer is authorized to make, or cause to be made, inspections to determine the condition of rental dwelling units to safeguard the health, safety and welfare of the public. The Code Enforcement Officer is authorized to enter, upon consent of the owner of the unit if the unit is unoccupied, or upon consent of the occupant if the unit is occupied, any rental dwelling unit and the premises in which the same is located, at any reasonable time during the daylight hours, or at such other time as may be necessary in an emergency, without consent of the owner, agent and/or tenant for the purpose of performing his duties under this chapter.
The Code Enforcement Officer of the Village of Brewster is authorized to make application to any court of competent jurisdiction for the issuance of a search warrant in order to conduct an inspection of any premises covered by this chapter where the owner refuses or fails, after due notice by certified mail, to allow an inspection of its rental premises and where there is a reasonable cause to believe that a violation of this chapter occurred. The application for a search warrant shall in all respects comply with the applicable laws of the State of New York.
The Code Enforcement Officer shall revoke a rental occupancy permit where he or she finds that the permit holder has caused, permitted, suffered or allowed to exist and remain upon the premises for which such permit has been issued, for a period of 14 business days or more after written notice has been given to the permit holder or the managing agent of such rental dwelling unit, a violation of the Multiple Residence Law, New York State Uniform Fire Prevention and Building Code or a violation of this chapter or other chapter of the Village Code. Revocation of a permit under this subsection cannot be done by a devisee or assistant of the Code Enforcement Officer.
An appeal from such revocation may be taken by the permit holder to the Village of Brewster Board of Trustees, by written request made within 30 days from the date of such revocation. The Village of Brewster Board of Trustees shall hold a public hearing on such appeal within 30 days after receipt of written notice of such appeal, and after such hearing shall make written findings, a conclusion and a decision either sustaining such permit revocation or reinstating such permit within 30 days after the close of such public hearing. Unless the Village of Brewster Board of Trustees directs otherwise in circumstances constituting serious threats to health and safety, the filing of an appeal shall stay the effectiveness of a permit revocation until the Village of Brewster Board of Trustees has considered and ruled upon the issue.
It shall be unlawful and a violation of this chapter and an offense within the meaning of the Penal Law of the State of New York for any owner to permit any tenant or other person, excluding immediate family, to take up residence by a rental occupancy in any dwelling unit without the owner's first having completed and filed with the Building Department a rental registration form approved by the Code Enforcement Officer. A new form must be filed whenever a dwelling unit or portion thereof has become vacant and the owner intends to permit a new tenant or other person to take up residence. No additional fee will be required if registering a change in tenancy only, under an existing valid permit.
Under Public Officers Law § 87, Subdivision 2(b), the information provided on rental registration forms, and that portion of the rental occupancy permit application required, shall be exempt from disclosure under the Freedom of Information Law on the grounds that such disclosure would constitute an unwarranted invasion of personal privacy. The Building Department will institute strict policies to ensure that such information is available only to Village personnel who are engaged in the enforcement and administration of the provisions of this chapter.
It shall be unlawful and a violation of this chapter and an offense within the meaning of the Penal Law of the State of New York for any broker or agent to list, show or otherwise offer for lease, rent or sale on behalf of the owner any dwelling unit for which a current rental occupancy permit has not been issued by the Building Department. It shall be the broker or agent's duty to verify the existence of a valid permit before acting on behalf of the owner. Notwithstanding the above, first-time rentals shall be granted a fourteen-business-day grace period for submission of required application paperwork and tenant registration.
Any broker or agent who has earned a commission or other compensation for renting or leasing a dwelling unit must, within five business days of earning said commission or other compensation, file with the Building Department a rental registration form, unless such form has been filed in the meantime. Failure to file shall be unlawful and a violation of this chapter and an offense within the meaning of the Penal Law of the State of New York.
By a penalty of not less than $250 and not more than $1,000 or by imprisonment for a period not to exceed 15 days, or both, for conviction of a first offense.
By a penalty of not less than $1,000 nor more than $5,000 or by imprisonment for a period not to exceed 15 days, or both, for conviction of the second of two offenses, both of which were committed within a period of five years.
By a penalty of not less than $2,000 nor more than $5,000 or by imprisonment for a period not to exceed 15 days, or both, for conviction of the third or subsequent offenses of a series of offenses, all of which were committed within a period of five years.
This chapter shall be enforced by the Code of Enforcement Officer as defined by this chapter.
Has not received a final determination on the application, for reasons over which the applicant has no control.


text:
(See fn. 2.) Appellant Gary William Music appeals from a judgmentfn. 1 denying his petition for writ of mandatefn. 2 seeking to [221 Cal. App. 3d 844] overturn an order of respondent, Department of Motor Vehicles, suspending his driver's license for six months for failing to submit to a chemical test when requested to do so by a police officer. (Veh. Code, Â§Â§ 13353, subd. (a); 23157.)fn. 3 The controlling issue on appeal is whether appellant was validly arrested for driving under the influence in that the arresting officer did not actually witness an act of driving a motor vehicle. We hold that under such circumstances, a warrantless arrest is invalid. Because a valid arrest is a condition precedent under the implied consent law for suspending a driving privilege (Â§ 13353, subd. (b); Padilla v. Meese (1986) 184 Cal. App. 3d 1022, 1026 [229 Cal.Rptr. 310]), we reverse.
At approximately 1:40 a.m., on a cold and rainy November 8, 1988, California Highway Patrol Officer Kevin James O'Connor spotted appellant's truck parked in a parking stall in front of the Blue Room Bar on the northbound shoulder of Redwood Drive in Garberville.fn. 4 The engine was running, exhaust was coming out of the exhaust pipe, the yellow parking lights were on, as was the radio, and the window was halfway open, and appellant was "slumped" over the steering wheel. Over the course of the next hour, O'Connor passed by the truck two more times; each time the truck and appellant were in the same condition. "Concerned," O'Connor decided to check on the driver.
O'Connor woke appellant; his eyes were red and glassy, his speech was slow and slurred, there was a strong odor of alcohol on his breath and he appeared confused. Appellant told O'Connor he had been drinking whiskey and "coke" and decided to sleep in the truck "until he was okay to drive home." Appellant claimed to be following a normal practice.
Appellant testified he drove his truck to town in the early afternoon, parked in front of the Blue Room (which was closed), and drank with friends in Garberville's other two bars. He walked back to the truck, and slept for "several hours" before he was arrested. Because it was raining, he turned on the engine so the heater would run. Appellant admitted being intoxicated but denied being slumped over the steering wheel: "I was laying in [sic] the seat of the truck."
"[Counsel]: So he told you in essence that ... he had come out of the Blue Room and fallen asleep in the truck.
"[Counsel]: So then you did not have reason to believe that he was driving the truck.
"[Counsel]: And yet you placed him under arrest for driving under the influence?
"[Counsel]: Did Mr. Music ask you any questions as to why you were making him do this when in fact he was not driving the vehicle but sleeping?
"Officer O'connor: As I recall he did. He was concerned with that and I told him that his vehicle was in the road, his vehicle was running, the lights were on and I was concerned about especially his statement of well I do this all the time, I sleep in the car until I feel I'm okay to drive home.
"[Counsel]: Was it reasonable to believe that he had the truck running so the heat would be on?
"[Counsel]: Especially since the window was down, you seem to think it was crazy that the window was down because it was raining.
"[Counsel]: Okay. Did ... he actually tell you that he had not been driving the vehicle?
"Officer O'connor: I don't recall, I'm sure he did though.
"[Counsel]: Okay so you never saw him driving and you just said that you really didn't have a reasonable belief that he was driving and I'm having trouble understanding under those circumstances why you told him he had to take either a field sobriety test or one of the tests under the [Vehicle Code] ... when he hadn't been driving a vehicle.
"Officer O'connor: Okay well mainly ... if a person is in or about their vehicle and he's in control of that vehicle and the vehicle is running and the vehicle is in the road, on the roadway, he is in control of the vehicle and there again what concerned me at that point was his own statement of his determination of when he would be okay to drive and as I talked to him, he was reaching and trying to get the gearshift in gear. At that point, his apparent intoxication, I was concerned that he would continue and go out on the road.
"[Counsel]: So you were taking more of a preventative measure is what you're saying.
"Officer O'connor: Well the preventative-yes it was preventative in one point but at the same time he is on the road and in control of his own vehicle, the vehicle is running, it's on the road and there's a lot of support there and I can't sit here and give you a particular case but I'm sure I can research it and dig that up."
In affirming the license revocation, the hearing officer made the four findings required by section 13353, subdivision (b):fn. 5 (1) Officer O'Connor [221 Cal. App. 3d 847] had reasonable cause to believe that appellant had been driving a motor vehicle in violation of sections 23152 or 23153 (driving under the influence of intoxicating liquor or drugs); (2) appellant was lawfully arrested; (3) appellant was advised that if he refused to submit to a chemical test his driving privileges would be suspended for six months; and (4) appellant refused to submit to a chemical test. With respect to the driving aspect, the hearing officer was impressed with the fact that appellant "attempted to shift gears and have the car move while the motor was running."
Exercising its independent judgment (Berlinghieri v. Department of Motor Vehicles, supra, 33 Cal. 3d at p. 395; Daly v. Department of Motor Vehicles (1986) 187 Cal. App. 3d 257, 261 [232 Cal.Rptr. 7]; Hughes v. Alexis, supra, 170 Cal. App. 3d at p. 806), the superior court affirmed the revocation and remarked: "The facts could be interpreted to support one, [of two], conclusions: [Â¶] 1. The vehicle was parked, for one hour, with the lights on, engine running, heater on and the defendant slumped over the wheel. The vehicle could be interpreted to not have moved from where Mr. Music parked it earlier in the day in accordance with his testimony; or [Â¶] 2. The vehicle was parked, in the conditioned [sic] listed above, after having been moved or driven by Mr. Music contrary to his testimony. [Â¶] The Hearing Officer found the second version to be the most likely explanation. This court agrees."
 If one views this case as did the trial court judge, then clearly the arrest was invalid. Under that scenario, appellant drove his truck before he was even spotted by Officer O'Connor. Because the officer was not and could not have been present or have witnessed the driving, Officer O'Connor could not legally arrest appellant for the misdemeanor crime. (People v. Engleman (1981) 116 Cal. App. 3d Supp. 14, 19 [172 Cal.Rptr. 474].) Perhaps aware of this problem with the trial court's analysis, respondent does not bother to advance the trial court's reasoning in support of the judgment. Instead, respondent argues that O'Connor did witness the driving, and that the act of driving occurred when appellant, with engine running, and lights on, attempted to turn off the engine but in confusion hit the gear shift. Primary reliance for this novel proposition is placed upon a rather expansive definition of the term "driving" rendered by the Court of Appeal in Henslee v. Department of Motor Vehicles, supra, 168 Cal. App. 3d 445.
In so holding, however, the court factually distinguished People v. Engleman, supra, 116 Cal. App. 3d Supp. 14, a case almost on all fours with this one.
Thus as we read Padilla, Engleman, and Henslee, if the driver does not move the vehicle in the officer's presence at least a few inches, the offense of driving under the influence has not occurred in the officer's presence. Any ensuing warrantless arrest is invalid.
Appellant's arrest was therefore illegal, unless some exception to the presence requirement applies. The only exception advanced by respondent is that contained in section 40300.5, namely, a police officer may arrest without a warrant if he observes an obviously intoxicated person "in or about a vehicle which is obstructing a roadway."fn. 9 But here, the uncontradicted evidence shows that appellant's truck was not obstructing a roadway. Instead, it was properly parked in a parking stall, extending only a few inches past the painted line. (See fn. 4, ante.) By even the most liberal interpretation (cf. Â§ 40300.6)fn. 10 obstruction of a roadway did not occur here.
We therefore conclude on this undisputed record that Officer O'Connor did not legally arrest appellant for driving under the influence. The implied consent statute and its penalty for noncompliance may not be applied to appellant.
The judgment is reversed and the cause is remanded with directions to issue a peremptory writ of mandate directing the Department of Motor Vehicles to set aside its order of suspension. Appellant to recover his costs on appeal.
Anderson, P. J., and Perley, J., concurred.
FN 3. Unless otherwise indicated, all further statutory references are to the Vehicle Code.
FN 4. According to the police report the truck "extended a few inches past the end of the white painted line of the parking stalls."
FN 5. At all relevant times to this proceeding, subdivision (b) of section 13353 provided in pertinent part: "For purposes of this section, the scope of the hearing shall cover the issues of whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23152 or 23153, whether the person was placed under arrest, whether the person refused to submit to, or did not complete, the test or tests after being requested by a peace officer, and whether ... the person had been told that his or her driving privilege would be suspended or revoked if he or she refused to submit to, or did not complete, the test or tests."
FN 6. Penal Code section 836 provides in pertinent part: "A peace officer may ... without a warrant, arrest a person: [Â¶] 1. When he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence. ..."
FN 8. Misplaced is respondent's reliance upon People v. Wilson (1985) 176 Cal. App. 3d Supp. 1 [222 Cal.Rptr. 540]. At issue in Wilson was not the validity of a warrantless arrest but rather the sufficiency of the evidence to support a conviction of driving under the influence. Carefully distinguishing the former situation, which requires slight movement of the vehicle in the officer's presence, the Wilson court held that the element of driving for purposes of proving the offense at trial could be established by circumstantial evidence. (At p. Supp. 9 [text and fn. 4].) Wilson does not support respondent's view that appellant drove the truck in Officer O'Connor's presence within the meaning of Penal Code section 836.
Equally distinguishable is the recent case of People v. Hernandez (1990) 219 Cal. App. 3d 1177 [269 Cal.Rptr. 21], which addressed the sufficiency of the evidence to support a conviction under section 23153 (driving under the influence and neglecting a duty imposed by law which proximately causes bodily injury to another). There, the defendant's truck stalled while on the interstate. Instead of moving to the shoulder, the defendant attempted to restart the vehicle while it still was moving. The truck came to a complete stop and was subsequently hit from behind, causing injuries to the driver and passenger of that car. The court had no hesitation in finding that the defendant was "driving" up until the time the truck came to a complete stop: "While the truck was in motion and [defendant] maintained control of it, he was posing a threat to public safety and thus, was driving within the meaning of section 23153." (Id. at p. 1184.) Nothing we have said today would lead to a contrary conclusion in Hernandez.
FN 9. Section 40300.5 provides: "Notwithstanding any other provision of law, a peace officer may, without a warrant, arrest a person who is (1) involved in a traffic accident or (2) observed by the peace officer in or about a vehicle which is obstructing a roadway, when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug."
FN 10. Section 40300.6 provides: "Section 40300.5 shall be liberally interpreted to further safe roads and the control of driving while under the influence of an alcoholic beverage or any drug in order to permit arrests to be made pursuant to that section within a reasonable time and distance away from the scene of a traffic accident. ..."

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