Category: Daily News

Bernard Cott contracted with a home health care agency to assist with his 85-year-old wife and codefendant Lorraine Cott, who had long suffered from Alzheimer’s disease. The agency assigned plaintiff Carolyn Gregory to work in the Cotts’ home.

Gregory was trained to care for Alzheimer’s patients, and had done so in other assignments. She knew they could be violent. Bernard told her Lorraine was combative and would bite, kick, scratch, and flail. Gregory’s duties included supervising, bathing, dressing, and transporting Lorraine, as well as some housekeeping. In September 2008, Gregory was washing dishes while Lorraine sat at the kitchen table. Bernard was not at home. As Gregory was washing a large knife, Lorraine approached her from behind, bumped into her, and reached toward the sink. When Gregory attempted to restrain Lorraine, she dropped the knife, which struck her wrist. As a result, Gregory lost feeling in several fingers and experienced recurring pain.

Gregory has received workers’ compensation for this injury. She also sued the Cotts for negligence and premises liability, with a claim against Lorraine for battery. The trial court granted a defense motion for summary judgment. A divided Court of Appeal affirmed, holding that Gregory’s claims were barred by the primary assumption of risk doctrine. The California Supreme Court affirmed the judgment in the case of Gregory v. Cott.

The question in this case is whether patients suffering from Alzheimer’s disease are liable for injuries they inflict on health care workers hired to care for them at home. Because agitation and physical aggression are common late-stage symptoms of the disease, injuries to caregivers are not unusual, California and other jurisdictions have established the rule that Alzheimer’s patients are not liable for injuries to caregivers in institutional settings. The California Supreme Court concluded that the same rule applies to in-home caregivers who, like their institutional counterparts, are employed specifically to assist these disabled persons. It is a settled principle that those hired to manage a hazardous condition may not sue their clients for injuries caused by the very risks they were retained to confront. “This conclusion is consistent with the strong public policy against confining the disabled in institutions. If liability were imposed for caregiver injuries in private homes, but not in hospitals or nursing homes, the incentive for families to institutionalize Alzheimer’s sufferers would increase. Our holding does not preclude liability in situations where caregivers are not warned of a known risk, where defendants otherwise increase the level of risk beyond that inherent in providing care, or where the cause of injury is unrelated to the symptoms of the disease.”

“As a general matter, Alzheimer’s patients and their families are liable under Civil Code section 41 for the injuries they inflict. Our holding bars recovery by only one class of plaintiffs: those employed to care for the patient. We also note that institutionalization is not an effective solution to the problem of injury to caregivers in general; as we have seen, it is not uncommon for Alzheimer’s patients to injure employees in institutions.”

“After weighing the public policies involved, we agree with those sister-state jurisdictions which have concluded that workers’ compensation, rather than tort recovery, is the appropriate means of compensating hired caregivers for injuries caused by Alzheimer’s patients.”

The dissenting opinion noted that “This is a hard case involving sad facts.” The dissent went on to point out several situations in which a caregiver will not be covered by workers’ compensation, and primary assumption of risk will bar any recovery for injuries of the type Gregory suffered, thus denying the caregiver any remedy for those injuries. Workers’ Compensation may not be available when there is no workers’ compensation insurance, or when the injured person is an independent contractor. “Under today’s ruling, the agency-provided home caregiver who is an independent contractor is barred from suing for injuries under the primary assumption of risk, and pursuant to long established principles he or she is denied workers’ compensation benefits as well.”

Each year, National Underwriter’s Excellence in Workers’ Compensation Risk Management Award recognizes three organizations with exemplary loss control, safety and return-to-work programs. They are the leaders in this arena, all featuring success stories showing proven results. This year’s winners are AmQuip, Danos and Iron Mountain. All three companies are being profiled in its special cover feature in NU’s August issue, and also will be honored on Aug. 18 during the 69th annual Workers’ Compensation Educational Conference (WCEC), set for Aug. 17-20 at the Orlando World Center Marriott in Florida.

AmQuip knows the secret to a successful workers’ compensation program: zero injuries. A tall order, to be sure – especially when your company rents out and operates nearly 700 cranes in 47 states to refineries, power plants, and industrial and building construction sites. Eliminating injuries, however, was far from impossible, according to Jeffrey C. Hammons, vice president of risk management for the Philadelphia-based crane rental provider. The right training and participation among employees, the company and its carriers greatly payed off – and a shared passion for the company and its values doesn’t hurt, either.”We’re one of the three largest employers of union [crane] operators in the country,” Hammons says, and while he’s quick to point out that AmQuip’s partnerships with a lengthy list of local unions attract many eager candidates to work for the company, he acknowledges that when you source 300 to 500 seasonal employees, they come with varied levels of training and professional development. And therein lies Hammons’ No. 1 challenge to his workers’ compensation program. AmQuip has averaged $46,000 a year in workers’ compensation costs since 2009. Its workers’ compensation budgets are reduced by 15% each year that the company comes in below its previous budget.

Danos’ culture of safety yields a record number of incident reduction in often treacherous conditions. Headquartered in Larose, La., Danos provides contract labor services, construction and fabrication, sandblasting and painting services and consultants to the oil and gas industry worldwide. Founded in 1947 and currently boasting a workforce of more than 1,600 employees, Danos operates in the U.S. Gulf of Mexico and gulf coast region, Texas, Wyoming, Pennsylvania, Ohio and in several foreign countries, supplying personnel for various on-site oil and gas industry projects and work sites, including pipelines. “We provide people,” says Mayet. “They are our product.” The work, as one would surmise, is inherently dangerous – particularly on work sites set over water, such as oil rigs. Even traveling to the work sites can be treacherous: Boats and helicopters are used for transportation of personnel and supplies. Swing ropes and cranes are used to transfer personnel and supplies from vessels to platform. Platforms include machinery, high-pressure wells, boat landings, steel decks, stairways and handrails, all of which need continuous maintenance and upkeep to control the effects of a salt water environment on steel surfaces and electrical machinery. Yet through its dedication in recent years to achieving operational excellence, Danos has reached all-time lows in its total recordable incident rates at a time when the company’s personnel, man-hours and exposures have increased tremendously. As its time on-site and total number of personnel have grown in recent years, incidents are on an inverse track.

When Geoffrey Smith joined the risk management team at Iron Mountain in 2008, it was clear that the company required a sea change when it came to its workers’ compensation program. As the largest records-management company in the U.S. with operations in 35 countries, Iron Mountain’s employees face a number of on-the-job exposures. “We pick up and store boxes of customer paper records, computer tapes and media, and then return these records to our customers upon request,” explains Smith – boxes that can easily weigh up to 80 pounds. As a result, back and shoulder injuries are common. He set and achieved the goal of reducing their costs by half within five years.

On Aug. 18 during the conference, NU Executive Managing Editor Shawn Moynihan will lead a special roundtable at 1 p.m. during which attendees can learn some of the secrets behind these award-winning programs. The award is sponsored by Helmsman Management Services, a third-party administrator that offers claims management, managed care and risk-control solutions for businesses with 1,000 employees or more. Presented by the Workers’ Compensation Institute, WCEC is the largest gathering of its kind in the nation and offers discipline-specific programs and breakout sessions from hundreds of national speakers.

Setting up a major legal fight, UnitedHealth Group Inc. has sued California’s insurance commissioner to block his attempt to fine the insurer $173.6 million for violations during a botched 2005 acquisition. The Los Angeles Times reports that the lawsuit, filed in Orange County Superior Court, is the latest twist in a long-running political drama. Four years ago, California sought a jaw-dropping fine of nearly $10 billion against UnitedHealth, the nation’s largest insurer. The penalty related to problems handling medical claims and policyholder applications after the insurer bought Cypress-based PacifiCare.

But that record penalty didn’t stand. Last year, an administrative law judge rejected much of the state’s case and said UnitedHealth should be fined no more than $11.5 million. California Insurance Commissioner Dave Jones rejected that ruling in a 220-page decision and imposed the $173.6-million penalty. He ordered UnitedHealth to pay it by July 22. That drew the lawsuit and a fiery response from UnitedHealth executives. The insurer, based in Minnetonka, Minn., said Jones was abusing his power and setting a dangerous precedent by seeking such stiff punishment for relatively minor violations. “This ruling threatens to paralyze the healthcare system in the state, resulting in more costs and bureaucracy for Californians,” said Stephen Scheneman, president of UnitedHealth’s PacifiCare unit. “We are taking this action to protect the interests of our customers, who depend on the availability of affordable health insurance.”

Byron Tucker, a spokesman for the insurance department, said the agency hadn’t had time to fully review UnitedHealth’s lawsuit. But he said, “Commissioner Jones carefully applied the law, and the department is confident the penalty will withstand the lawsuit.”

In its June 9 decision, the insurance department said its proposed fine “appropriately reflects the gravity of PacifiCare’s offenses and provides the necessary deterrent effect going forward.” The handling of the case by Jones, a Democrat running for reelection, could become a point of contention in this fall’s campaign over health insurance rate regulation. An initiative on the November ballot would give the insurance commissioner the authority to reject health insurance rate increases that he deems unreasonable. Health insurers, business groups and other opponents say the ballot measure gives the insurance commissioner too much power and subjects the rate-setting process to politics. Jones has said rate regulation is crucial to protect consumers and small businesses from excessive rate hikes. He also says the rate regulation authority is essential to fulfill the goals of the Affordable Care Act.

UnitedHealth has long acknowledged that the takeover of PacifiCare didn’t go as planned. The company admits numerous mistakes in processing medical claims and customer applications. California initially took action against UnitedHealth in 2008 under then-Insurance Commissioner Steve Poizner, a Republican. At first, he said a fine of $1.3 billion was warranted. Two years later – while Poizner was seeking the Republican nomination for governor – he upped the ante and sought as much as $10 billion in penalties. To justify the enormous fine, insurance regulators said UnitedHealth committed more than 900,000 violations after taking over PacifiCare. Poizner stood by his aggressive pursuit of the case while he was in office. He declined to comment directly on the latest developments. “When companies come to California and acquire healthcare organizations, and do not keep promises made to the California Department of Insurance and the people of California, there should be stiff fines,” Poizner said. “In my opinion, that’s what happened when UnitedHealth Group bought California-based PacifiCare.” Poizner is now chief executive of EmpoweredU, an education technology company in Campbell, Calif.

UnitedHealth had challenged Poizner’s proposed fines with an administrative law judge. The case dragged on from December 2009 to June 2013, and the state judge heard testimony and arguments for more than 230 days.In her August 2013 decision, Administrative Law Judge Ruth S. Astle found that “there were numerous problems related to the integration” of UnitedHealth and PacifiCare. She noted significant problems receiving, tracking and retrieving paper documents submitted to PacifiCare. PacifiCare identified 1,799 claims that it had denied in 2006 because of its failure to verify existence of previous coverage, court records show. “This is a serious violation in that it left some claimants with no coverage,” the judge wrote. “It is difficult to assess the full impact since some claimants may have given up and just waited out the six-month exclusion.” The administrative law judge, in setting her $11.5-million fine, noted that the insurer failed to pay claims correctly or on time.

The judge’s ruling was more in line with other penalties assessed against health insurers. The state’s other insurance regulator, the Department of Managed Health Care, cited many of the same problems and reached a settlement with UnitedHealth for a $2-million fine.

The Division of Workers’ Compensation announced that Judge Jane Madsen will permanently transfer to the Eureka office effective August 1. Judge Madsen has been presiding over the calendar since former Presiding Judge Robert W. Kutz retired in 2013.

Judge Madsen will transfer from her former post as a judge in the Redding district office, where she has been since 2007. She joined DWC in 2005 as a workers’ compensation judge in the Long Beach office.

With only a single workers’ compensation judge, the Eureka office will become a satellite under the supervision of Santa Rosa Presiding Judge James Johnson. The transition will have no effect on access to the office by practitioners and injured workers in the Eureka area. Information and Assistance and Disability Evaluation services will be provided through coordination with the Santa Rosa and Redding offices, as they have been for some time.

The Eureka office will remain at its current location at 100 H Street, Room 202, although a move is possible in the future.

Early this month, a federal judge granted preliminary approval to a landmark deal that would compensate thousands of former NFL players for concussion-related claims. The ruling by U.S. District Judge Anita Brody in Philadelphia came about two weeks after the NFL agreed to remove a $675 million cap on damages. Brody had previously questioned whether that would be enough money to pay all claims. More than 4,500 former players have filed suit, some accusing the league of fraud for its handling of concussions.

The settlement is designed to last at least 65 years and cover retirees who develop Lou Gehrig’s disease and other neurological problems. The original settlement included $675 million for compensatory claims for players with neurological symptoms, $75 million for baseline testing and $10 million for medical research and education. The NFL would also pay an additional $112 million to the players’ lawyers, for a total payout of more than $870 million. The revised settlement eliminates the cap on overall damage claims but retains a payout formula for individual retirees that considers their age and illness. A young retiree with amyotrophic lateral sclerosis, or Lou Gehrig’s disease, would receive $5 million, a 50-year-old with Alzheimer’s disease would get $1.6 million and an 80-year-old with early dementia would get $25,000.

It is not immediately clear how pending or future workers’ compensation claims will or will not integrate the proceeds of these settlements, or be allowed offsets to claimed compensation benefits.

Meanwhile Reuters reports that the NCAA has agreed to settle a head injury lawsuit by providing $70 million for concussion testing and diagnosis of student athletes in a move to change the way colleges address sports safety, according to court documents filed on Tuesday. The class-action agreement, if approved by a federal judge and class members, would apply to student athletes in all sports who played at schools regulated by the National Collegiate Athletic Association (NCAA) at any time in the past and up to 50 years into the future.

While the money in the NFL settlement was intended to resolve all of the personal injury claims for the plaintiffs’ out of pocket damages, Tuesday’s proposed NCAA settlement was designed to pay only for research and a medical monitoring program.

Attorneys involved in the case said that “If the settlement is approved, overnight it’s going to change the way sports are played.” The NCAA settlement addresses a number of guidelines, including that a student with a concussion will not be allowed to return to play or practice on the same day and must be cleared by a doctor. Also, medical personnel must be present for all games and available for practices. The settlement also establishes a process for schools to report concussions.

The NCAA lawsuit was first filed in 2011 on behalf of former Eastern Illinois football player Adrian Arrington, who said he suffers from headaches and seizures as a result of five documented concussions. The proposed settlement covers other cases. Not all plaintiffs’ attorneys were happy with the proposed settlement. Attorney Jay Edelson told U.S. District Judge John Lee at Tuesday’s hearing in Chicago that it benefited the NCAA, rather than injured players. Edelson said players already received medical testing and the settlement would not help them financially to recover from injuries. U.S. District Judge John Lee set the next hearing on the case for Sept. 19, at which time he may decide on whether to grant a preliminary approval for the settlement. More than 450,000 NCAA student athletes compete in 23 sports. The NCAA makes about $740 million revenue each year, according to court documents.

As the NFL approaches its exit strategy on the concussion cases, it is becoming deeply involved in the new claims filed in San Francisco this year by former players seeking damages for what they allege to be the illegal distribution of painkillers. Former NFL wide receiver J.D. Hill, former Chicago Bears quarterback Jim McMahon and six other former NFL players claim the league illegally gave them narcotics and other painkillers that led to addiction and long-term medical complications in a class-action lawsuit filed this May in San Francisco federal court.