Category: Daily News

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.

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.