Author: WorkCompAcademy

Despite the prevalence of “do-it-yourself” manuals and television shows, most homeowners eventually decide that some home repairs or maintenance would best be done by hiring someone to do the work. Inevitably, some workers are injured. There are sometimes confusing rules about when a homeowner is liable for injuries to workers on the property, either in tort or under the workers’ compensation system.

The common questions include whether the person hired by the homeowner was (1) required to be a licensed professional to do the work, and (2) if so, whether the person had the required license. The Court of Appeal in the published case of Jones v Sorenson was required to sort through these questions.

Homeowner Danita Sorenson hired “Odette Miranda dba Designs by Leo” to trim and cut trees on Sorenson’s property, and Miranda hired Jones to help her. Miranda had done landscaping work for Sorenson for 13 or 14 years, including weeding, trimming, maintaining a front-yard pond, and so forth. Miranda did not routinely use a ladder. Miranda was not licensed or insured.

Jones worked as a helper for Miranda about twice a year, and Miranda paid Jones. Jones had worked at Sorenson’s property four times, and once she had trimmed trees from the ground. This time Jones used a small ladder and a larger pole ladder to prune lilacs and remove plums from a tree. While trimming and cutting a tree over 15 feet tall, and while using a ladder provided by Miranda, Jones fell and was hurt.

Jones’s claim for workers compensation benefits was denied by Sorenson’s homeowner’s insurance carrier because Jones had not satisfied statutory minimum work requirements under the Labor Code.

Miranda was allegedly negligent in various ways (failure to train, supervise, provide proper equipment, etc.), but because Miranda was an unlicensed contractor, Sorenson was deemed by law to be Miranda’s employer. Therefore, Sorenson was liable for Miranda’s negligence on a respondeat superior theory, i.e., Miranda’s negligence was imputable to defendant.

The trial court ruled in effect that the terms “gardener” and “nurseryperson” as used in Business and Professions Code section 7026.1 were synonymous, and therefore Sorenson could avoid tort liability because a person acting as a nurseryperson may trim trees 15 feet tall or higher without a contractor’s license, although a gardener cannot. Summary judgment was granted dismissing the case. Jones appealed, and the Court of Appeal reversed in the published case.

As stated by our Supreme Court, “It is doubtful the average homeowner realizes tree trimming can require a contractor’s license.” (Fernandez v. Lawson (2003) 31 Cal.4th 31, 37.

The relevant statute, which distinguishes between a “gardener” and a “nurseryperson”; the latter refers to a licensed operator of a nursery, whereas a gardener does not require a license. There is no evidence that the gardener Sorenson hired was also a nurseryperson. This means Sorenson–the movant on summary judgment–has not refuted the claim that she was the gardener’s (and therefore Jones’s) employer, and potentially liable under a respondeat superior theory for the gardener’s alleged negligence.

Accredited Surety & Casualty Company, Inc., a Florida-headquartered insurance company that is licensed in all 50 states to write admitted business, has closed its largest ever program underwriting partnership. Atlas General Insurance Services, LLC, a national multi-line program administrator, has added an exclusive new workers’ compensation insurance program with Accredited.

Accredited recently expanded its insurance offerings to include workers’ compensation and selected Atlas as its exclusive program administrator nationwide. California is the first state where the program is available, and Atlas is actively working with Accredited to expand this program nationwide.

The new platform includes more than 320 eligible class codes, including contractors, healthcare, transportation, agriculture, towing, janitorial, manufacturing, refuse operations, warehousing & storage, automotive services and more. Atlas also includes services like an online rater, flexible payment plans, loss control services and claims handling.

Atlas is now accepting applications for these risks.

Atlas General Insurance Services provides service and coverage for clients seeking workers’ compensation, commercial lines, and specialty property coverage. It also develops and underwrites various insurance solutions in the United States. It provides workers’ compensation insurance solutions for agriculture, construction, healthcare, janitorial services, landscaping, manufacturing, recycling operations, transportation, and warehousing and storage industries.

The company also underwrites commercial insurance for small and medium-sized businesses in the United States. It focuses on general liability, property, package, inland marine, and other property and casualty lines; and commercial property and Difference in Conditions (DIC), including earthquake and incidental flood coverage.

The company was incorporated in 2008 and is based in San Diego, California. It has locations in Knoxville, Tennessee and New York, New York.

Accredited Surety and Casualty Company is a wholly owned subsidiary of Randall & Quilter Investment Holdings, Ltd. Accredited is a Florida domiciled insurer that is U.S. Treasury listed and licensed and admitted in all 50 states as well as the District of Columbia with offices in Orlando and Atlanta.

Randall & Quilter Investment Holdings Ltd. is a diverse insurance group, headquartered and operating in Bermuda but with extensive operations in the UK, US, Bermuda and Europe.

David Lague, a physician’s assistant who formerly practiced in San Leandro, was convicted of thirty-nine counts of distributing oxycodone, oxymorphone, methadone, amphetamines, clonazepam, fentanyl, hydromorphone, morphine, hydrocodone, alprazolam, and carisoprodol outside the course of professional practice and without a legitimate medical purpose,

Lague was indicted by a federal grand jury in 2017, and charged with thirty-six counts of distributing Schedule II controlled substances outside the usual course of professional practice without a legitimate medical purpose, three counts of distributing Schedule IV controlled substances outside the usual course of professional practice without a legitimate medical purpose, one count of conspiracy to commit health care fraud, and six counts of health care fraud.

Evidence at trial showed that Lague was the number one prescriber of opioids in the state of California in 2015 and 2016, according to Medicare’s records. Lague prescribed over 1.6 million controlled substance pills, of which over 1.4 million were in the most dangerous and abused category (designated by the DEA as Schedule II), in 2016.

Undercover videotapes showed Lague prescribing pills to an informant without asking any questions about the patient’s health or performing any physical examinations.

Further recordings showed that, when the informant asked Lague to double his oxycodone prescription to allow him to sell the extra pills for $6,000, Lague proceeded to provide the prescription, along with suggestions on how to avoid detection by the pharmacy or insurance provider.

The guilty verdict followed an eleven-day jury trial. The jury found that Lague had prescribed oxycodone pills on two occasions to a patient who had informed Lague that he intended to sell the pills to make a profit. In addition, the jury concluded that Lague had prescribed potent and highly addictive controlled substances to four other patients in a manner that he knew was not medically legitimate. The jury acquitted Lague of health care fraud charges in connection with his fentanyl prescriptions to one of the four patients.

Following his conviction, Lague was remanded to the custody of the United States Marshals Service. Defendant’s sentencing hearing is scheduled for October 22, 2018.

A new partially published case from the Court of Appeal addresses the circumstances under which a safety consultant retained by a California employer owes a duty of care to the employer’s workers.

Plaintiffs are the parents of Oscar Peredia, Jr., who was 19 years old on September 20, 2012, when he was killed while working at Double Diamond’s dairy. When Oscar Jr. was sweeping the feed slab that morning, he was hit by the front-end loader on a John Deere tractor, knocked down, and run over by the right front wheel of the tractor.

Double Diamond began its dairy business in 1998. At the time of the incident, the dairy occupied 220 acres, had approximately 4,800 milking cows, a total of 9,500 animals, and about 50 employees. Approximately 3,000 acres of farmland support the dairy, and Double Diamond’s farming operations employ another 20 workers.

Double Diamond engaged defendant HR Mobile Services, Inc. to assist it with human resources, training, loss prevention, and workers’ compensation issues. The contractual relationship between Double Diamond and HR Mobile was established by a handshake and was not set forth in a written document signed by the parties. Double Diamond paid HR Mobile $24,000 per year for services related to the dairy.

HR Mobile requested Boretti, Inc., one of its vendors, to provide a form of injury and illness prevention plan (IIPP). HR Mobile asserts that when it obtained the IIPP from Boretti, Inc., it believed the IIPP complied with California’s basic statutory and regulatory requirements for dairy IIPP’s and was based on current occupational and health standards and requirements and on accepted industrial safety and health principles and practices.

Plaintiffs contend HR Mobile’s belief was not reasonable because, among other things, HR Mobile neglected to analyze the dairy’s previous IIPP or the one obtained from Boretti, Inc. to ensure the new IIPP complied with occupational and health standards and requirements. Plaintiffs assert the subsequent citations issued by California’s Division of Occupational Safety and Health (CalOSHA) establish the IIPP was not compliant.

The trial court granted summary judgment to the safety consultant on the ground the consultant owed no duty of care to the employees because the consultant’s allegedly negligent omissions were not affirmative misfeasance and, therefore, were not acts “wrongful in their nature” for purposes of Civil Code section 2343. The Court of Appeal disagreed, and reversed in the partially published case of Peredia v HR Mobile Services.

California recognizes the common law theory of negligent undertaking, which is described in section 324A of the Restatement Second of Torts. Our Supreme Court set forth the five elements of a negligent undertaking cause of action in Artiglio v. Corning Inc. (1998) 18 Cal.4th 604 (Artiglio), three of which are related to the duty of care. A safety consultant is liable to an employee of the firm that hired the safety consultant when the employee establishes the elements of a negligent undertaking claim set forth by  the California Supreme Court in Artiglio.

On June 26, the Division of Workers’ Compensation (DWC) adopted an order adjusting the Official Medical Fee Schedule to conform to changes in the Medicare Physician Fee Schedule payment system’s July 1, 2018 quarterly update. The June 26 Order included adoption of updates to the National Correct Coding Initiative “Medically Unlikely Edits” (MUE).

The MUE edits file sets forth the maximum number of units of service related to a specific procedure that are medically likely to be reported by a treating physician. It serves as a useful screening tool to identify possible billing errors for many procedure codes.

However, evaluation of the July 1, 2018 MUE file reveals that many codes are listed as zero value due to Medicare coverage rules that do not apply to the scope of workers’ compensation medical care. For example, acupuncture codes and hearing aid examination codes were added to the file with a value of “zero” because they are not Medicare benefits; however, they are covered services for workers’ compensation patients when medically necessary. The fee schedule regulation provides that the correct coding edits, including the MUE, do not apply where workers’ compensation payment rules differ from Medicare rules.  

In order to avoid possible confusion and inappropriate denials of bills for medically necessary care, DWC has determined that the codes listed in the MUE with a value of zero should not be included in the MUE file adopted for workers’ compensation.

Therefore, the DWC has adopted a revised Physician and Non-Physician Practitioner fee schedule update Order for services rendered on or after July 1, 2018. The revised Order adopts an Excerpt of the MUE file, which deletes codes listed with a zero value.

The exclusion of the zero value codes from the MUE file does not mean that all of the deleted codes are payable. It should be noted that some of the MUE zero value codes would not be payable in workers’ compensation, in particular the codes that are identified as Status Code B (bundled) in the Relative Value Unit File and codes specifically identified in the fee schedule regulation as not payable.  Although the Status Code B bundled codes, and the workers’ compensation “not payable” codes, will not be identified by the MUE, the payer may apply other edits to identify those non-payable codes.

In addition, the Order adopts revisions to conform to current Medicare terminology, as the “Physician CCI Edits” are now entitled “Practitioner PTP Edits.”

If a medical provider believes a medical bill has been inappropriately denied based upon the application of the MUE, he or she may submit a request for second bill review to the claims administrator.

The order, revised regulation text and the MUE Excerpt file are effective for services rendered on or after July 1, 2018 and can be found on the DWC website.