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Court of Appeal Publishes Case Mandating Cross Examination of Worker

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 Unpublished opinions, are those decisions of courts that are not available for citation as precedent.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engaging in legal research come across that perfect case that makes that key point – only to realize that the case is “unpublished.”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 The case was initially unpublished.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.”

Applicability of Bunkhouse Rule to Voluntary Rental Housing is Triable Issue

In 1997 Monnie Wright began working at San Quentin as a correctional officer. The following year, he moved into a State-owned rental unit within the gated area of the San Quentin grounds. Living there was voluntary on Wright’s part: it was not a condition of his employment with the State, and he paid market rate rent, receiving no discount or other employment benefit for living on the property. Wright’s original lease for the unit required that he obtain a “broad policy of comprehensive coverage of public liability insurance, naming the State as the insured.” It also contained an indemnity clause.

Wright was injured when he fell in the course of his lengthy walk from his home to his actual place of work. Wright left his rental unit that morning and began his walk to the Donner Unit to begin his 6:00 a.m. shift. As he neared the bottom of the first staircase just outside his unit, a concrete step allegedly collapsed beneath him, and he fell. Wright filed a claim for workers’ compensation benefits for injuries resulting from the fall. He received benefits in the form of medical expenses and disability payments. And in July 2012, he went on early disability retirement. He thereafter filed suit against the State asserting one cause of action, for premises liability. He alleged that he “fell and was injured when a defectively constructed and dangerously maintained stair crumbled beneath him.”

The State moved for summary judgment on the ground that Wright’s claim was barred by the workers’ compensation exclusive remedy rule. The motion was granted and the case was dismissed. The Court of Appeal reversed and remanded in the published case of Wright vs State of California.

The bunkhouse rule dates back to the 1920’s, with the earliest mention found in Associated Oil Co. v. Industrial Acc. Com. (1923) 191 Cal. 557. There, an employee who lived in a rooming house provided by his employer and on the employer’s property was injured when the leg of a chair on which he sat went through a crack in the porch floor, causing him to fall from the porch. The Industrial Accident Commission awarded the employee workers’ compensation benefits. The employer sought certiorari. And got it. The Supreme Court considered whether ” ‘injuries occurring about the employer’s bunkhouse situated on the employer’s working premises, sustained by employees during their leisure hours while reasonably using the bunkhouse in a proper manner during intermissions from work, the injury being due to unsafe conditions of the premises provided by the employer, are within the protection of the Workmen’s Compensation Act.’ ” It noted the general rule that “when the contract of employment contemplates that the employees shall sleep upon the premises of the employer, the employee, under such circumstances, is considered to be performing services growing out of and incidental to such employment during the time he is on the premises of the employer.” Applying this rule, the court held that the circumstances did not trigger workers’ compensation coverage. Specifically, it noted the employee fell from the porch on a Sunday – at a time when not at work and [he] was neither required to work nor to be on the premises.” Additionally, he had a choice of residing in a nearby town but opted to reside in the more convenient lodging provided by his employer.Under these circumstances, the court concluded, the employee’s injuries did not occur in the course of his employment, and it annulled the award.

Since 1924, a number of cases have addressed the bunkhouse rule, analyzing its application under a variety of circumstances. Applying the case authorities on the Bunkhouse Rule to the facts of this case demonstrates at the least a triable issue of material fact whether Wright was acting in the course of his employment at the time he was injured. Wright lived on the San Quentin grounds purely voluntarily. It was not required by his employment contract, nor was it necessary for him to live there. Indeed, the State expressly concedes “[i]t is undisputed that living in the residence was not a condition of Wright’s employment with the State.” Wright paid market rate for the rental, and the rental was not a benefit of his employment. Further, there was no evidence that Wright was ever on call or performed any work out of his rental unit. In its order granting summary judgment the trial court did not mention, let alone analyze, the bunkhouse rule, even though Wright raised it in his opposition, not even considering whether the fact that Wright lived on State-owned property should affect whether the premises line rule applied.

Stipulation Binds Employer to Non-MPN Physician

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.”

DWC Posts Third Revision to Copy Service Fee Schedule

Following a public hearing on July 1, 2014 and a review of comments from previous 15-day public comment periods, the Division of Workers’ Compensation has made revisions to its Copy Service Fee Schedule regulations. Members of the public are invited to present written comments regarding the proposed modifications to dwcrules@dir.ca.gov until 5 p.m. on Friday, February 13. Proposed revisions include the following:

1) Bills must now include the county of registration of professional photocopier certificates so that professional photocopier status can be verified more easily.
2) 30-day requests from injured workers for employer or claims records must be written.
3) Transcript fees have been reduced from $150 to $100 for transcripts up to 33 pages.
4) DWC fees for CDs of electronic records have been eliminated.

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

Employers Reminded to Post Injury Summaries

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.

Office of Self Insurance Plans Opens E-Filing Portal

The California Department of Industrial Relations’ Office of Self Insurance Plans (DIR/OSIP) has launched a new, more comprehensive and user-friendly actuarial e-filing portal. This new portal is part of the workers’ compensation reforms mandated by the passage of Senate Bill 863. This is an expansion to OSIP’s launch of its E-filing system for the filing of annual reports. This upgraded system facilitates the registration of qualified actuaries. It also allows self-insured employers to select their actuaries, and to file required actuarial studies online.

“This accomplishment is part of an overall strategic effort to modernize, streamline and be accessible to the public,” said Christine Baker, DIR director. OSIP is a program within DIR.
In the first 72 hours after launching in mid-January, nearly 90 percent of qualified actuaries from last year completed their registration. As the high adoption rate shows, the new E-filing portal enables more efficient and timely monitoring of self-insurer financial performance and solvency. Within the next few months, the E-filing system will also have the ability to electronically file annual independently audited financial statement modules that are a requirement of being self-insured.

Senate Bill 863 created a new requirement for self-insured employers to file annual independent actuarial studies to establish their self-insured workers’ compensation liabilities. This new methodology is used to determine the self-insurers’ required collateral deposit posting amount, and has proved to be very effective in more closely matching a self-insurer’s liabilities with the collateral they post. “These enhancements are designed to create ease and efficiency for the self-insured community, while reducing the costs associated with OSIP staff performing routine handling and processing functions,” said Jon Wroten, OSIP chief. “This will ensure self-insurance continues as the highest quality and lowest-cost choice for California employers’ workers’ compensation needs.”

Actuaries having questions about the new system or needing help to register should call the OSIP at (916) 464-7000. More information on California’s workers’ compensation self-insurance program is available at the OSIP website. One of every four California workers is protected by a self-insurance plan. Self-insured employers in the state represent large and mid-sized private companies, industry groups and public entities such as cities, counties, and school districts. The state currently has nearly 9,900 employers protecting more than 4 million workers through self-insurance workers’ compensation plans. For more information contact Erika Monterroza at (510) 286-1164 or Peter Melton at (510) 286-7046.

Comp Award Precludes Sheriff’s Case Against Restaurant

Steve Ferreira was employed as a deputy in the Los Angeles County Sheriff’s Department. While off duty, Ferreira was with his nephews and two other friends when Anthony Cruz Carlin approached them in the parking lot of the King Taco Restaurant and began pushing and shoving Ferreira’s nephews. Carlin began to choke one of Ferreira’s nephews. Ferreira interceded and held Carlin “in a hold.” Ferreira released Carlin and told everyone to “knock it off and get back into the car.” Ferreira then noticed Carlin walking in his direction. Carlin stabbed Ferreira with a knife. After he was stabbed, Ferreira pulled out his badge, told Carlin to “drop the knife,” and took steps to arrest Carlin. Following the incident, Ferreira was unable to work for nine months. He applied for and received workers’ compensation benefits.

Ferreira brought this lawsuit against the King Taco Restaurant, alleging the Restaurant was negligent in failing to provide adequate security to protect its customers. Ferreira sought damages, medical expenses, and loss of earning capacity in connection with the stabbing incident. The Restaurant filed a summary judgment motion, contending that the firefighter’s rule barred this action because Ferreira obtained workers’ compensation benefits and was, therefore, judicially estopped from claiming the stabbing incident was unrelated to Ferreira’s occupation as a peace officer. The trial court agreed and granted the motion. The Court of Appeal sustained the dismissal in the unpublished case of Ferreira v. King Taco Restaurant.

The defense created by the firefighter’s rule limits the duty of care the public owes to firefighters and police officers. “Under the firefighter’s rule, a member of the public who negligently starts a fire owes no duty of care to assure that the firefighter who is summoned to combat the fire is not injured thereby. Nor does a member of the public whose conduct precipitates the intervention of a police officer owe a duty of care to the officer with respect to the original negligence that caused the officer’s intervention.” In Hodges v. Yarian, 53 Cal.App.4th 973, the court extended the firefighter’s rule to an off-duty deputy sheriff who suffered injuries when he shot and killed a suspected burglar in the deputy’s own apartment building. Because Hodges was performing off-duty the same activity he performed on-duty, that is, attempting to effectuate an arrest of the suspect, the court applied the firefighter’s rule to bar the lawsuit.

The firefighter’s rule, however, is “hedged about with exceptions.” (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 538.) Ferreira unsuccessfully raised two statutory exceptions and one common law exception.

Ferreira contends that whether he was acting as an off-duty deputy sheriff at the time he was stabbed is a question of fact that should have been left to the jury. It is undisputed that Ferreira sought workers’ compensation benefits following the stabbing incident and stated in that application that the injury occurred when he was “stabbed in abdomen by suspect.” It is further undisputed that the parties settled the case, and Ferreira obtained a stipulated award in which he received workers’ compensation benefits. The Court of Appeal agreed with the trial court that because Ferreira obtained workers’ compensation benefits as an off-duty peace officer he was judicially estopped from asserting in this action that he was attempting “to break up a fight as a private citizen.” Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.

In his claim for workers’ compensation benefits, Ferreira invoked an exception to the workers’ compensation laws for off-duty peace officers who are injured outside the workplace and outside assigned working hours. Off-duty peace officers may arrest lawbreakers at any time and are entitled to compensation whenever the officer is injured, dies, or is disabled from performing his duties as a peace officer by reason of engaging in the apprehension or attempted apprehension of law violators or suspected law violators, or protection or preservation of life or property, or the preservation of the peace anywhere in this state, including the local jurisdiction in which he is employed.

Ferreira also unsuccessfully attempted to apply other exceptions to the firefighter’s rule contained in Civil.Code, §1714.9. The common law exception Ferreira invokes is referred to as the “independent cause exception,” which applies when the plaintiff’s injuries were not caused by an act of negligence that prompted the plaintiff to be present at the time and place where the injuries were sustained. One of these exceptions require that the defendant must commit an act of negligence injuring a peace officer “after the person knows or should have known of the presence of the peace officer.” In the present case the Restaurant had no knowledge of his presence.

DWC Announces Winners of Carrie Nevans Award

The Division of Workers’ Compensation has announced the winners of the 2015 Carrie Nevans Community Service Award. This year’s award recipient in Southern California is Donald Marshall, Zenith vice president. Dr. Lee Snook, a pain management specialist, is the Northern California recipient. The awards will be presented at the upcoming 22nd annual DWC educational conference luncheons.

Donald C. Marshall is the vice president and national director of the Anti-Fraud Program for Zenith Insurance Company. He was a police officer for 12 years and worked as a patrolman and, later, became a Detective assigned to the White Collar Crime Unit. He was appointed to the State of California Fraud Assessment Commission by Governor Schwarzenegger in 2010 and elected Chair in November 2011. Over the past 20 years, he has worked at a number of insurance carriers including Progressive, California Casualty, Nationwide (GatesMcDonald), CalFarm and Zenith. Mr. Marshall has also been qualified and has testified as an expert witness in insurance fraud in both Municipal and Superior court. He has received his Certified Fraud Examiner, Fraud Claim Law Specialist and Accredited Healthcare Fraud Investigator designations, is a former member of the Executive Board of the National Healthcare Anti-Fraud Association. He has his BS degree in Criminal Justice Administration from California State University East Bay and is a Licensed Private Investigator. His efforts at detecting and preventing workers’ compensation fraud have helped combat fraudulent practices, resulting in reducing insurance costs and protecting California employers and employees.

Dr. Lee Snook is the vice speaker of the California Medical Association House of Delegates and president of Metropolitan Pain Management Consultants in Sacramento. Dr. Snook has served as a qualified medical evaluator (QME) since 1995 and, since 2012, as the Pain Medicine expert on the Medical Evidence Evaluation Advisory Committee (MEEAC). Dr. Snook graduated from the University of Nevada, School of Medicine in Reno, NV. He did his internal medicine and anesthesiology residencies at the University of Wisconsin Hospitals and Clinics in Madison, Wisconsin. He is board certified in anesthesiology, internal medicine, addiction Medicine and pain medicine. He is a fellow of the American College of Physicians and the American Society of Addiction Medicine.He continues to play an active role in developing MEEAC’s recommendations for the Medical Treatment Utilization Schedule, which forms the evidence-based guideline for treating workers in California. His reasoned, thoughtful approach balances practical patient management experience with scientific evidence from the medical literature.

The DWC’s 22nd annual educational conference is the largest workers’ compensation training in the state and allows claims administrators, attorneys, medical providers, return to work specialists, employers, and others to learn about the most recent developments in the system as well as ongoing DWC programs. The Los Angeles conference (February 9-10) is almost sold out; registration is still open for the Oakland training (February 19-20) at the Oakland Marriott City Center Hotel.

RAND Publishes Report on Home Health Care Fee Schedule

The Division of Workers’ Compensation (DWC) today posted the 2015 RAND study Home Health Care for California’s Injured Workers – Options for Implementing a Fee Schedule. California

The Medicare fee schedule for home health services covers only home health services provided when a homebound individual needs intermittent or part-time skilled care. To date, DWC has not implemented a Medicare-based fee schedule for home health services. Section 74 of Senate Bill 863 added Labor Code §5307.8, which requires that DWC adopt a fee schedule for home health services not covered by Medicare. This fee schedule must establish fees and service provider requirements based on the rules used by the In-Home Supportive Services (IHSS) program, a MediCal-funded program that provides supportive services necessary to enable elderly and disabled individuals to remain safely within their homes. The DWC asked RAND to provide technical assistance in developing the fee schedule and related coverage policies for home health services.

The 130 page RAND study found that neither the Medicare fee schedule nor the IHSS fee schedule would be sufficient to cover the full range of potential home care services provided to injured workers. Nonetheless the DWC, the fee schedule should build on existing fee schedules policies, coding system and payment amounts. This is the approach that has been taken with respect to other components of the OMFS. Given the SB 863 requirements, priority should be given to adapting the IHSS fee schedules as needed for the WC patient population. There should be standardized codes describing the type and volume of services provided to the injured worker. To the extent feasible, the codes should draw on existing code sets. The payment rates should be adequate to cover the estimated costs (including a fair return on investment) of providing the services efficiently, and the payment incentives should be structured to safeguard against the under- or over provision of care.  One of the more controversial RAND recommendations might be their suggestion that “To balance worker choice with safety and cost considerations, family members should be allowed to provide attendant care services when they have the training to do so and there is appropriate financial accountability and oversight.”

The DWC will hold a public meeting to discuss issues related to the home health services fee schedule on Tuesday, March 3, from 10:00 a.m. to Noon at the Elihu Harris State Office Building Auditorium located at 1515 Clay Street in Oakland. The purpose of the meeting is to hear input from the public regarding issues including assessing the need for home health services, service provider requirements, fee amounts, and billing codes.

Additions to Saline Solution Reduce Risk of Osteoarthritis

Research scientists in Edinburgh have come up with a new ‘solution’ that could reduce the risk of osteoarthritis developing in tens of thousands of people who undergo orthopaedic surgery every year – sugar. According to the summary in Reuters Health, people who have surgery for joint problems are at increased risk of developing osteoarthritis because the operation can damage cartilage cells. But a team at the University of Edinburgh have found that by simply adding sugar to the saline solution used to wash out joints during orthopaedic surgery protects the cartilage from being damaged and may even improve cartilage repair.

Osteoarthritis, which affects more than eight million people in the UK, occurs when cartilage at the ends of bones wears away, leading to stiff, painful joints. There is no cure and treatment is limited to pain relief and joint replacement in severe cases.

The main risk factors for developing for the condition are ageing, obesity, and joint damage. People who undergo surgery or arthroscopic procedures to treat joint problems – often because of a sports injury or unexplained joint pain – are at an increased risk of developing osteoarthritis because surgery can damage the joint and tissue by destroying cartilage cells called chondrocytes.

But in experiments on rats, the team at Edinburgh University’s Centre for Integrative Physiology found that by adding sugar to the saline solution used during surgery to wash out the joint they could protect the joints from this increased risk. Sugar raises the osmotic pressure of the saline, which protects the cells against injury during surgery. The researchers describe the solution as ‘chondroprotective’ because it protects the cartilage cells against injury.

The team have also shown that as well as protecting against cartilage damage there is better cartilage repair when the chondroprotective solution is used, compared to the usual saline currently used in orthopaedic surgery. Their research was funded by Arthritis Research UK and published in the journal Osteoarthritis and Cartilage.

Dr Andrew Hall, principal investigator and reader in cell physiology said: “Our findings could have major implications for tens of thousands of people who undergo arthroscopic surgery, such as footballers or other sportspeople who’ve damaged their cartilage. Or in fact anyone who’s had exploratory surgery for a sore or painful knee. “There is a worry that all these people are at risk of developing osteoarthritis from their surgery. But if surgeons can be persuaded to use this chondroprotective solution as standard that risk could be substantially reduced. It’s a cheap, simple solution that can protect the cartilage in the joint during arthroscopy and surgery.”

Dr Stephen Simpson, director of research at Arthritis Research UK commented: “It’s extraordinary that something as simple as a sugar solution can have such a beneficial, protective effect on the joints during surgery and can actually help repair cartilage damage. It seems a simple yet potentially valuable step that surgeons around the country could be persuaded to include in their procedures.”