Author: WorkCompAcademy

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 The Court of Appeal sustained the dismissal in the unpublished case of Ferreira v. King Taco Restaurant.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.

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.

An article in Risk and Insurance speculates that as more insurance distribution channels are being created, the potential disruption of the ordinary course of business for underwriters and brokers increases. One of those channels, although details are hazy, involves Overstock.com Inc., a Utah-based e-commerce site that survived the dot-com bust by selling dying Internet companies’ inventories.

Since April 2014, Overstock.com has sold insurance, including auto, property, liability and workers’ comp for businesses, through an exchange where consumers receive live quotes, pick which the coverage they like, and then have a policy bound for them. But who is really doing the the underwriting? Apparently, the underwriters’ names had been confidential, but when asked Dave Nielsen, Overstock.com’s senior vice president, said shared some of them: 21st Century, Progressive, Safeco and American Strategic (ASI). Overstock.com is “seeing good traffic” on the site, Nielsen said, and he’s expecting to “see [sales] continually increasing month over month” as the company adds more products. The logistics of claims and other policy-servicing depends on the carrier, Nielsen added. Overstock services some accounts in-house; others it transfers directly to carriers. But no matter what, policyholders contact Overstock first.

Most of the insureds probably care little about the identify of the underwriters, said Denise Garth, partner and chief digital officer at consultancy Strategy Meets Action (SMA). As far as the insurance buyer goes, they’re a customer of Overstock.com. “[Overstock is] definitely the channel where it’s been sold, and it’s the channel where the customer is going to go to for service,” Garth said.

And it’s just one channel of many it seems that are on the verge of disrupting well-tread insurance distribution networks. In particular, according to a report from London-based market risk and consulting firm Finaccord, as many as 281 retail brands around the world are selling insurance, up from 232 retailers in 2010. Global names like Walmart, Tesco, Marks and Spencer, and Carrefour are “leveraging” their brands and huge customer bases to sell mainstream insurance products, said Finaccord Director Alan Leach. “They can supplement the thin profit margin that they can earn from their core business by selling financial services,” Leach said. They wield data they already collect on their customers to empower cross-selling. If they know which of their customers buy pet food, they know which of their customers to market pet insurance to.

At this point, however, this trend of retailers selling insurance is “not so much” in the United States, Leach said, and in many cases, they’re selling personal lines products to consumers. But retailers are just one group the traditional insurance world must confront. Some observers, like Garth, argue that this trend doesn’t just put the insurance distribution process at stake, but affects the industry’s business model as a whole. Some of the savviest, brawniest, data-driven companies in the world are coming. Alibaba, of the recent record-breaking IPO, launched an online insurance platform in 2013 called Leyebao, aimed at Alibaba’s online store owners and their employees. Google forayed into the insurance space in the U.K. in 2012, with a car insurance comparison tool. They’re coming because consumers apparently want them to.

“Competition in the insurance industry could quickly intensify as consumers become open to buying insurance not only from traditional competitors such as banks but also from Internet giants,” said Michael Lyman, global managing director for management consulting within Accenture’s insurance industry practice, when he announced the Feb. 2014 research. The disruption will not be as black and white as an Alibaba launching an insurance company or Walmart taking jobs away from Main Street agents. The invaders seem to care less about the means than the end result. “They want to own a customer for a lifetime,” Garth said.

Their success at that could leave insurers as mere “manufacturers” of insurance products, and agents and brokers as mere customer service representatives, for the companies that will own consumer loyalty and lifetime customer value.

Jesus Cordova was awarded 100% disability and future medical care as a result of his injury while employed by Graventa Enterprises who was insured by the State Fund. The current dispute involved the future medical care, and the UR process. The WCJ found that the defendant issued utilization review non-certification notices on June 28 and July 19,2013 and that neither denial was communicated timely to the applicant’s primary treating physician or accompanied by the required Independent Medical Review form, thereby rendering the denials inadmissible. The WCJ awarded the contested medical treatment, penalties, and attorney’s fees.

In a Petition for Reconsideration, the State Fund claimed in essence, that the WCJ erred in awarding the contested medical treatment, penalties, and attorneys fees, arguing that the Appeals Board lacks jurisdiction to decide a dispute over a utilization review decision which was communicated to the primary treating physician on or after July l, 2013 and in refusing to apply Labor Code section 4610(9)(6) to a request for treatment which issued within 12 months of a utilization review decision denying the same treatment. Defendant also contends that the WCJ is without power to award an attorney fee for enforcement of a medical award.

The WCAB panel in the case of Cordova v Graventa Enterprises that Labor Code section 4610.5, which provides for independent medical review of utilization review decisions, applies to “any dispute over a utilization review decision if the decision is communicated to the requesting physician on or after July  l, 2013, regardless of the date of injury. However none of the disputed denials of treatment were communicated to a requesting physician on or after July 1.2013, thus none of the disputed utilization review decisions are subject to independent medical review.

Labor code section 4610(9)(6) provides that “A utilization review decision to modify, delay, or deny a treatment recommendation shall remain effective for 12 months from the date of the decision without further action by the employer with regard to any further recommendation by the same physician for the same treatment unless the further recommendation is supported by a documented change in the facts material to the basis of the utilization review decision.” The record had insufficient evidence to determine whether the utilization review decision or decisions were timely made and whether defendant relied on section 4610(e)(6) or submitted additional requests for that prescription to utilization review. Thus this issue was deferred with jurisdiction reserved at the trial level.

On the issue of penalties, defendant’s delay of treatment that was authorized by a utilization review physician was unreasonable. However, with respect to the denied prescription for Nucynta, defendant could reasonably rely on the utilization review denial. Accordingly,the Findings and Award was amended to award a penalty and an attorneys fee on the delayed provision of Neurontin. Applicant’s attorney is entitled to a fee pursuant to Labor Code section 5814.5 for successfully enforcing an award.

The WCAB also decided to “admonish defendant that applicant has an award of medical treatment and the utilization review cycle of denials and authorizations for applicant’s prescription medications appears arbitrary. While defendant is entitled to submit every prescription request to utilization review, we suggest that defendant should consider whether doing so is cost effective and fulfills its obligation to provide applicant with medical treatment to cure or relieve him from the effects of his industrial injury.”

Portable X-ray services are becoming more popular as patients seek medical care in familiar surroundings.

According to the Report in Reuters Health, proponents say-home X-ray services help frail patients avoid difficult and potentially hazardous trips to hospitals. Other patients seek in-home providers out of convenience, as an ankle or chest X-ray can take less than 20 minutes. “We go to the patient and take the X-ray, rather than having the patient go to the doctor’s office,” said Paul Fowler, founder of Specialty Portable X-Ray, Inc. in New York. “Usually, in about an hour after we take an X-ray we give these results directly to the doctor,” he told Reuters Health. “With the digital X-rays, we are using probably less exposure than you would at the hospital.”

Patients must have a doctor’s prescription for an x-ray, or for an ultrasound exam, which can also be done at home. Fowler’s company charges about $300 for a visit for patients without health insurance, he said. Some celebrities seek his services to avoid paparazzi and unwanted attention.

Jacob R. Wuerstle, president of Diagnostic X-ray Service, Inc. in Pennsylvania, said portable X-rays are also used in assisted living facilities and prisons. “We keep the patients in a setting that they’re familiar with, that they’re comfortable with,” he told Reuters Health. The option for home X-rays is especially helpful for elderly patients in snowy parts of the country. His technicians scan more than 30,000 patients per year. Sessions cost about $200. “We use state-of-the-art equipment and we transmit right from the patient’s bedside to the radiologist,” he said.

Dr. James C. Carr, a professor of radiology at Northwestern University’s Feinberg School of Medicine in Chicago, believes trained technicians using portable machines can provide quality scans for patients in rural areas or unable to move. “As long as the equipment is being regulated and the technologists are satisfactorily trained, concerns can be mitigated,” he told Reuters Health.

But portable X-ray machines, while convenient, may be less accurate. Dr. David Levin, professor and chairman emeritus of the Department of Radiology at Thomas Jefferson University Hospital in Philadelphia said he would not recommend in-home X-rays for mobile patients. “The quality of those images is usually not very good. If you compare the quality of those kinds of studies with the quality of a study that was performed in a hospital in a radiology department or in a private radiology office, there is going to be no comparison,” he told Reuters Health. “If a portable X-ray is absolutely necessary because of the patient’s clinical condition, then it’s justifiable.”

As the portable X-ray market grows, state and federal regulations for radiation protection must be followed, said Dr. William Thorwarth, Jr., chief executive officer of the American College of Radiology in Virginia. “You want to be very certain that the technologist who’s acquiring the images is appropriately trained and qualified,” he told Reuters Health. “There needs to be appropriate precautions so that other people in the house are not exposed.”