Author: WorkCompAcademy

Anthem is the nation’s second-largest health insurer, operating Blue Cross and Blue Shield plans in 14 states including California. Company officials report that Anthem was the target of a very sophisticated external cyber attack. These attackers gained unauthorized access to Anthem’s IT system and have obtained personal information from up to 80 million current and former members such as their names, birthdays, medical IDs/social security numbers, street addresses, email addresses and employment information, including income data. No information is available about the status of any information in its database arising out of Workers’ Compensation MPN services.

Anthem officials became aware of the breach when one of their senior administrators noticed someone was using his identity to request information from the database. Once the attack was discovered, Anthem said it immediately made every effort to close the security vulnerability, contacted the FBI and began fully cooperating with their investigation. Anthem has also retained Mandiant, one of the world’s leading cybersecurity firms, to evaluate our systems and identify solutions based on the evolving landscape.

Anthem will individually notify current and former members whose information has been accessed. It will provide credit monitoring and identity protection services free of charge. Anthem created a dedicated website – www.AnthemFacts.com – where members can access information such as frequent questions and answers. It has also established a dedicated toll-free number that both current and former members can call if they have questions related to this incident. That number is: 1-877-263-7995.

The hackers are thought to have infiltrated Anthem’s networks by using a sophisticated malicious software program that gave them access to the login credential of an Anthem employee. “This is one of the worst breaches I have ever seen,” said Paul Stephens, director of policy and advocacy for the Privacy Rights Clearinghouse, a nonprofit consumer education and advocacy group. “These people knew what they were doing and recognized there was a treasure trove here, and I think they are going to use it to engage in very sophisticated kinds of identity theft.”

The decision by Anthem to bring in the Federal Bureau of Investigation and go public with the breach is the kind of move that law enforcement officials have been encouraging for the last several months. F.B.I. officials have appeared at a number of industry conferences urging corporate executives to promptly report breaches and, when possible, share information about the breach with competitors.

The cyberattack points to the vulnerability of health care companies, which security specialists say are behind other industries in protecting sensitive personal information. Experts said the information was vulnerable because Anthem did not take steps, like protecting the data in its computers though encryption, in the same way it protected medical information that was sent or shared outside of the database. While the health industry has not previously experienced the large-scale breaches that have plagued retailers like Target and Home Depot, there have been smaller attacks. Statistics maintained by the federal government’s Office for Civil Rights at the Department of Human Services say there have been 740 major health care breaches affecting 29 million people over the last five years. But the information that health providers maintain about consumers tended to be more valuable on the black market than the credit card information that is often stolen from on a retailer.

Katherine Keefe, global focus group leader for breach response services at Beazley, which underwrites cyberliability policies, said “The value to a criminal of having a full set of medical information on a person can go for $40 to $50 on the street. By contrast, a credit card number is often worth $4 or $5,” The information can be used to impersonate hacking victims to obtain medical care or to purchase expensive medical equipment such as motorized wheelchairs. It often takes health-care providers longer to detect this type of fraud than credit card companies or banks, which are constantly looking for inconsistencies that could signal a problem. That also means it can be more time consuming and costly for victims to correct, experts say. Criminal attacks on health-care organizations increased 100 percent between 2009 and 2013, according to a report on patient privacy by think tank the Ponemon Institute. About 40 percent of health organizations reported facing criminal cyberattacks in 2013, the report said.

In the summer of 2003, Wilfredo Velasquez started working at Gold Coast, a company that made food flavorings.Velasquez moved diacetyl, in both closed and open bags and containers, throughout the company’s facility. He breathed ambient diacetyl particles in the air while using a sprayer to mix diacetyl into batches of liquid and dry flavorings, and while hand pouring the compound into mixes. Centrome, Inc. dba Advanced Biotech supplied roughly 80 percent of the diacetyl that Gold Coast used in its facility. Advanced did not manufacture the diacetyl. Advanced purchased the compound from suppliers then distributed it to customers like Gold Coast.

Advanced attached material safety data sheets (MSDS’s) to the containers of diacetyl it distributed to its customers. The MSDS’s warned that diacetyl was “harmful by inhalation,” but did not include specific warnings about the risks of any particular diseases from exposure to the compound. At trial, it was undisputed that Advanced’s warnings were consistent with flavorings industry practices at the time that Velasquez was working at Gold Coast. The California Division of Occupational Safety and Health did not issue exposure limits for diacetyl until 2010, more than four years after Velasquez stopped working at Gold Coast. There were no federal regulations governing exposure limits for diacetyl while Velasquez worked at Gold Coast. Even by the time of trial of Velasquez’s current case in 2012, the Federal Drug Administration continued to classify diacetyl as “Generally Regarded as Safe.”

Velasquez developed symptoms including shortness of breath. He was first diagnosed with bronchiolitis obliterans, a rare form of lung disease which is usually progressive and fatal, in December 2006. He received workers’ compensation benefits and claims to have a need for a lung transplant in the future.

In April 2007 Velasquez filed a civil complaint for personal injuries against several manufacturers and distributors of chemical compounds used to make food flavorings. Velasquez alleged his lung disease was caused by workplace exposure to a chemical compound, diacetyl, that was distributed by defendant and respondent Centrome, Inc. dba Advanced Biotech.

In the months leading up to trial, Velasquez filed a motion in limine to preclude Advanced (and, at the time, a number of other defendants) from presenting any evidence or making any comment about his citizenship or immigration status, or showing that he had used falsified information or documents when applying for employment. The defendants opposed the motion on the theory that Velasquez claimed to be a lung transplant candidate, and his candidacy would be precluded depending on his immigration status. The Court resolved this dispute after hearing testimony from UCLA physicians that immigration status can be discussed in the decision making process for lung transplant candidacy by denying the motion stating “I’m going to deny your in limine motion to keep it out. That’s my ruling.” In making its ruling, the court acknowledged that evidence of immigration status was “highly, highly prejudicial,” but that its probative value in Velasquez’s case was “definitely more than a little.” A complicated jury voir dire process occurred with the Court interjecting comments hoping to mitigate prejudice caused by information about his immigration status. Some jurors and alternate jurors admitted the information would have some influence on them and they were dismissed. However, after the ruling and during the trial the UCLA physician changed his testimony indicating that there was a new policy and it would not consider residency and immigration status when making decisions on transplant approvals. At this point it was too late, and the jury had already been involved in the immigration dispute. Motions for mistrial were overruled.

Trial was dominated by expert testimony. Nearly a dozen medical doctors testified on the subject of Velasquez’s medical history, his current medical condition, his prognosis, his medical treatment to date, and his need for future medical treatment, including his need for a lung transplant. The the jury returned a special verdict that supported the trial court granting Advanced’s motion for nonsuit on Velasquez’s common law negligence theory. Velasquez appealed, and the Court of Appeal reversed in the published case of Velasquez v Centrome, Inc. dba Advanced Biotech.

The Court of Appeal agreed with Velasquez that when an undocumented immigrant plaintiff files a personal injury action, but does not claim damages for lost earnings or earnings capacity, evidence of his or her immigration status is irrelevant. “Immigration status has no tendency in reason to prove or disprove any fact material to the issue of liability; it does not demonstrate whether the defendant committed a harm-causing act. Immigration status has no tendency in reason to prove or disprove any fact material to the determination of past special damages, i.e., what are the plaintiff’s past medical bills up to the date of trial. Nor is evidence of immigration status relevant to general damages, as it does not prove or disprove what is the reasonable amount of money to compensate the plaintiff for his or her past and future pain and suffering. Further, immigration status alone has no tendency in reason to prove or disprove any fact material to the issue of a party’s credibility.” The trial court abused its discretion in determining Velasquez’s alienage status was admissible under Evidence Code section 352, and the jury should not have been informed of it. California and in multiple other jurisdictions have recognized the strong danger of prejudice attendant with the disclosure of a party’s status as an undocumented immigrant. The trial court should have declared a mistrial.

Selective publication is the legal process which a judge or justices of a court decide whether a decision is to be or not published in an official reporter. Unpublished opinions, are those decisions of courts that are not available for citation as precedent. Every day in California, lawyers engaging in legal research come across that perfect case that makes that key point – only to realize that the case is “unpublished.” California Rules of Court 8.1115(a) provides that any decision that is not certified for publication (or not ordered published) “must not be cited or relied on by a court or a party in any other action.” However the WCAB does not have a similar Rule. Nonetheless, published opinions are clearly controlling law.

The Court of Appeal decision last month in Ogden Entertainment Services v. WCAB answers the question of when is an expedited hearing too expedited. It also makes clear the mandate that due process of law protections are alive and well at the WCAB. The case was initially unpublished. However, a petition by Tim Morgan Esq., at Floyd, Skeren and Kelly to have the case published was just granted, and the case is now fully citable law in all California courts.

Kristian Von Ritzhoff sustained injuries while working as a banquet server in 1996. Orthopedic injuries were admitted and psychiatric injury denied. The PTP found Ritzhoff’s right ankle permanent and stationary as of October 25, 2005. Save for its significance as the origin of Ritzhoff’s psychiatric injuries, the orthopedic injury dropped out of consideration thereafter.

Ritzhoff has been representing himself since 1998. At the expedited hearing of May 18, 2006 the defendant began to cross-examine him. However, the WCJ terminated cross-examination over the defendant’s objection and even though the defendant had not finished because of alleged time constraints arising from the expedited nature of the hearing. The WCJ also noted that the videotape the defendant sought to have admitted was “more appropriate for later cross-examination (of a doctor and/or applicant as to accuracy of his history) rather than at this stage of the proceedings.” Nonetheless the WCJ found Ritzhoff temporarily totally disabled from a psychiatric injury based upon a 1999 medical report. The WCAB denied reconsideration of this order.

There now followed three hearings. The first two focused on whether Ritzhoff was psychiatrically permanent and stationary and thus no longer entitled to TTD. The third hearing ended with the finding that Ritzhoff was 100% disabled. Ritzhoff refused to be cross-examined at all three of these hearings.

The Court of Appeal reversed and remanded in the now published case. “For two centuries past, the policy of the Anglo-American system of Evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.” “We address in this case therefore nothing less than one of the fundamental guarantees of a fair trial or, as in this case, a fair hearing, for there is no doubt that the right of cross-examination is guaranteed to the parties in workers’ compensation proceedings.” “Give what the purposes of cross-examination are, we must correct the misperception shared by the WCJ and the appeals board that, as a layperson, Ritzhoff had nothing to add as a witness.” “The importance of cross-examination as a means of testing and attacking the credibility of a witness is undiminished in the modern era.”

Indeed, the Court of Appeal unraveled the case to a point earlier than the last hearing by stating “The appeals board’s view that the defense should have sought review of its decision regarding cross-examination following the first and second hearings ignores the plain fact these were not final decisions of the appeals board and thus were not reviewable in this court under the aegis of a writ of review.”

Richard Shawl sustained industrial injury while working for Steve’s Automotive as a tow truck driver on March 7, 2001, causing 65% permanent disability without apportionment and a need for future medical treatment. At the time of his award, Jacob Rabinovich, M.D., was applicant’s non-MPN primary treating physician. He continued to serve as applicant’s primary treating physician in the following years and was compensated by defendant for providing reasonable medical care.

The defendant’s MPN was approved by the Administrative Director on December 20, 2011, and the MPN was implemented by defendant effective March 1, 2012. However, defendant did not promptly seek to transfer applicant’s care into its MPN. Instead, as documented in the August 27, 2012 pretrial conference statement,defendant stipulated in writing to Dr. Rabinovich as applicant’s primary treating physician at the pretrial conference. There was no indication of any issue regarding the transfer of applicant’s care into the MPN noted on the record. Applicant continued to treat with Dr. Rabinovich pursuant to defendant’s stipulation following the August 27, 2012 pretrial conference.

The following year, on June 27, 2013, defendant sent applicant letters concerning his transfer into the MPN. No change in applicant’s condition or circumstances was identified by defendant as the reason for seeking to remove Dr. Rabinovich as applicant’s primary treating physician. Applicant continued to treat with Dr. Rabinovich and a dispute arose over defendant’s refusal to authorize medical treatment requested by the physician. On May 15, 2014, applicant filed a Declaration of Readiness to Proceed to Expedited Hearing concerning his continuing treatment with Dr. Rabinovich. The WCJ found that Defendant properly transferred Applicant’s future medical care into Defendant’s Medical Provider Network and that Applicant was to receive further medical care from a physician chosen within Defendant’s Medical Provider Network. After reconsideration, the WCAB reversed in the significant panel decision of Shawl v Steve’s Automotive.

Stipulations made at a mandatory settlement conference are binding upon the assenting parties, and a party may not withdraw from such a stipulation except upon a showing of good cause. Moreover, AD Rule 9797.9(a) expressly recognizes that an employer or insurer may “authorize” treatment by a provider outside of its MPN regardless of whether the injured worker meets one of the four conditions described by the WCJ in her Report that would otherwise require continued treatment by the non-MPN physician. (Cal. Code Regs., tit. 8, § 9797.9(a).). defendant’s August 27, 2012 stipulation to Dr. Rabinovich as applicant’s treating physician served as its authorization for applicant to treat outside the MPN as described in AD Rule 9797.9(a) because defendant’s MPN was already implemented at that time. Defendant has made no showing of a change in case law or judicial interpretation of a statute that would provide “good cause” to relieve it from its stipulation.

The WCAB panel went on to note that “An efficacious physician-patient relationship is an ingredient aiding in the success of medical treatment because it inspires confidence in the patient, and a lawfully established physician-patient relationship should be preserved unless there is a change in the employee’s condition or the treatment being provided is defective or incomplete.” In the absence of a showing of good cause that allows defendant to withdraw from its August 27, 2012 stipulation to applicant’s treatment with Dr. Rabinovich outside the MPN, the refusal to authorize reasonable treatment requested by that physician is fairly construed as neglect or refusal to provide medical treatment that makes defendant liable for its reasonable cost if it is self-procured.

Commissioner Deidra Lowe dissented from the opinion. The Appeals Board held in Babbitt v. Ow Jing (2007) 72 Cal.Comp.Cases 70, 71 (Appeals Board en banc) that the statutory amendments allowing the provision of medical treatment through an MPN could be applied retroactively. There is no valid basis for distinguishing the August 27, 2012 stipulation made by the defendant in this case, from the prior stipulation and award of medical treatment addressed by the Appeals Board in Babbitt. In Babbitt it was held “”Because of the unique aspects of the MPN statutes, we do not find that an employer or insurer must demonstrate that there has been a change of condition or defective or incomplete medical treatment before transferring an injured worker into an MPN.” Thus Commissioner Lowe concluded in the dissent “Defendant properly acted to transfer applicant into its MPN in conformity with applicable statutes and regulations. There is no need for a defendant to show good cause or a change in condition or circumstances to justify the transfer of an injured worker’s medical treatment into an MPN. The decision of the WCJ should be affirmed.”

Cal/OSHA reminds all California employers to post their annual summaries of work-related injuries and illnesses from February 1 through April 30. “This yearly requirement is a graphic reminder on the importance of workplace safety. It provides important data about injuries and illnesses that took place at the worksite, and highlights the need to address potential hazards,” said Christine Baker, Director of the Department of Industrial Relations (DIR). Cal/OSHA, also known as the Division of Occupational Safety and Health, is a division of DIR.

“Employers must summarize information about every work-related death, and every recordable work-related injury or illness,” said Cal/OSHA Chief Juliann Sum. The definitions of and requirements for recordable work-related fatalities, injuries and illnesses are detailed in California Code of Regulations Title 8 Sections 14300 through 14300.48. Instructions and form templates can be downloaded for free on Cal/OSHA’s Record Keeping Overview. The overview includes the summary template, Form 300A, a required workplace posting which must be placed in a visible and easily accessible area at each worksite. All current and former employees, as well as employee representatives, must be allowed the opportunity to review any injury or illness that took place at the worksite during 2014.

Employers are required to complete and post Form 300A even if no workplace injuries occurred. More information on employers’ posting requirements or how to reduce workplace injuries and illnesses is available on the DIR’s Employer Information webpage.

Cal/OSHA helps protect workers from health and safety hazards on the job in almost every workplace in California. Cal/OSHA’s Consultation Program provides free and voluntary assistance to employers and employee organizations to improve their health and safety programs. Employers should call (800) 963-9424 for assistance from the Cal/OSHA Consultation Program.

Employees with work-related questions or complaints may call the California Workers’ Information Hotline at (866) 924-9757 for recorded information in English and Spanish on a variety of work-related topics. Complaints can also be filed confidentially with Cal/OSHA District Offices.