Under SB 899, apportionment can now be based upon causation. Apportionment can be used to divide a specific injury case into two cases, the original specific injury, and then a continuous trauma case if continuous trauma played a causation role in the current medical problem. This strategy can take a life pension specific injury claim and reduce it to two smaller cases neither of which triggers a life pension. For this reason, it becomes significant to follow medical literature as elements of causation are developed in the medical literature. Here is a current example.
New research reveals the physical and psychosocial factors that significantly increase the risk of low back pain onset. In fact, according to the article in Science Daily, results published in Arthritis Care and Research, a journal of the American College of Rheumatology (ACR), show that being engaged in manual tasks involving awkward positions will increase the risk of low back pain by eight times. Those who are distracted during activities or fatigued also significantly increase their risk of acute low back pain.
At some point, nearly 10% of the world's population experience back pain, which is the leading cause of disability according to the World Health Organization (WHO) Global Burden of Disease report (2010). WHO reports that low back pain has a greater impact on global health than malaria, diabetes, or lung cancer; yet little progress has been made to identify effective prevention strategies.
"Understanding which risk factors contribute to back pain and controlling exposure to these risks is an important first step in prevention," explains Associate Professor Manuela Ferreira, Ph.D., with The George Institute for Global Health and Sydney Medical School at The University of Sydney in New South Wales, Australia. "Our study is the first to examine brief exposure to a range of modifiable triggers for an acute episode of low back pain."
For this case-crossover study, researchers recruited 999 participants from 300 primary care clinics in Sydney, Australia, who had an acute low back pain episode between October 2011 and November 2012. Study subjects were asked to report exposure to 12 physical or psychosocial factors in the 96 hours prior to the onset of back pain.
The risk of a new episode of low back pain significantly increased due to a range of triggers, from an odds ratio of 2.7 for moderate to vigorous physical activity to 25.0 for distraction during an activity. Researchers found that age moderated the effect of exposure to heavy loads, with odds ratio for individuals 20, 40, or 60 years of age at 13.6, 6.0, and 2.7, respectively. A new finding not reported previously was that back pain risk was highest between 7:00 a.m. and noon.
"Understanding which modifiable risk factors lead to low back pain is an important step toward controlling a condition that affects so many worldwide," concludes A/Prof Ferreira. "Our findings enhance knowledge of low back pain triggers and will assist the development of new prevention programs that can reduce suffering from this potentially disabling condition."
The citation to this study is: Daniel Steffens, Manuela L Ferreira, Jane Latimer, Paulo H Ferreira, Bart W Koes, Fiona Blyth, Qiang Li, Christopher G Maher. What triggers an episode of acute low back pain? A case-crossover study. Arthritis Care Research, 2014; DOI: 10.1002/acr.22533 ...
New research reveals the physical and psychosocial factors that significantly increase the risk of low back pain onset. In fact, according to the article in Science Daily, results published in Arthritis Care and Research, a journal of the American College of Rheumatology (ACR), show that being engaged in manual tasks involving awkward positions will increase the risk of low back pain by eight times. Those who are distracted during activities or fatigued also significantly increase their risk of acute low back pain.
At some point, nearly 10% of the world's population experience back pain, which is the leading cause of disability according to the World Health Organization (WHO) Global Burden of Disease report (2010). WHO reports that low back pain has a greater impact on global health than malaria, diabetes, or lung cancer; yet little progress has been made to identify effective prevention strategies.
"Understanding which risk factors contribute to back pain and controlling exposure to these risks is an important first step in prevention," explains Associate Professor Manuela Ferreira, Ph.D., with The George Institute for Global Health and Sydney Medical School at The University of Sydney in New South Wales, Australia. "Our study is the first to examine brief exposure to a range of modifiable triggers for an acute episode of low back pain."
For this case-crossover study, researchers recruited 999 participants from 300 primary care clinics in Sydney, Australia, who had an acute low back pain episode between October 2011 and November 2012. Study subjects were asked to report exposure to 12 physical or psychosocial factors in the 96 hours prior to the onset of back pain.
The risk of a new episode of low back pain significantly increased due to a range of triggers, from an odds ratio of 2.7 for moderate to vigorous physical activity to 25.0 for distraction during an activity. Researchers found that age moderated the effect of exposure to heavy loads, with odds ratio for individuals 20, 40, or 60 years of age at 13.6, 6.0, and 2.7, respectively. A new finding not reported previously was that back pain risk was highest between 7:00 a.m. and noon.
"Understanding which modifiable risk factors lead to low back pain is an important step toward controlling a condition that affects so many worldwide," concludes A/Prof Ferreira. "Our findings enhance knowledge of low back pain triggers and will assist the development of new prevention programs that can reduce suffering from this potentially disabling condition."
The citation to this study is: Daniel Steffens, Manuela L Ferreira, Jane Latimer, Paulo H Ferreira, Bart W Koes, Fiona Blyth, Qiang Li, Christopher G Maher. What triggers an episode of acute low back pain? A case-crossover study. Arthritis Care Research, 2014; DOI: 10.1002/acr.22533 ...
The Division of Workers' Compensation has adopted and filed an amendment to the official medical fee schedule (OMFS) with the Secretary of State. The amended regulation reiterates the applicable dates of fee schedule provisions that are declaratory of existing laws; addresses the operating disproportionate share hospital (DSH) adjustments to inpatient hospitals; addresses the inpatient hospital outlier payments for eligible transfer cases; updates inpatient hospital factors to 2014, and makes minor adjustments to various sections of the OMFS.
The regulation amends title 8, California Code of Regulations sections, and is effective March 5, 2015. The regulation can be found on the DWC website’s rulemaking page.
The DWC has also issued an administrative director (AD) order adjusting the inpatient hospital section of the OMFS to conform to changes in the 2015 Medicare payment system as required by Labor Code section 5307.1. The effective date of the changes is March 5, 2015. Although 2014 update factors were adopted in the OMFS rulemaking (discussed above) with the same effective date of March 5, 2015, the 2015 update factors adopted by this AD order should be used for dates of discharge on or after March 5, 2015.
Further information and adjustments to the inpatient hospital section of the OMFS can be found on the DWC website’s OMFS page ...
The regulation amends title 8, California Code of Regulations sections, and is effective March 5, 2015. The regulation can be found on the DWC website’s rulemaking page.
The DWC has also issued an administrative director (AD) order adjusting the inpatient hospital section of the OMFS to conform to changes in the 2015 Medicare payment system as required by Labor Code section 5307.1. The effective date of the changes is March 5, 2015. Although 2014 update factors were adopted in the OMFS rulemaking (discussed above) with the same effective date of March 5, 2015, the 2015 update factors adopted by this AD order should be used for dates of discharge on or after March 5, 2015.
Further information and adjustments to the inpatient hospital section of the OMFS can be found on the DWC website’s OMFS page ...
Security experts are warning healthcare and insurance companies that 2015 will be the "Year of the Healthcare Hack," as cybercriminals are increasingly attracted to troves of personal information held by U.S. insurers and hospitals that command high prices on the underground market according to the story in Reuters Health.
Anthem Inc, the No. 2 U.S. health insurer, last week disclosed a massive breach of its database containing nearly 80 million records, prompting investigations by state and federal authorities. That hack followed a breach last year at hospital operator Community Health Systems, which compromised some 4.5 million records.
"People feel that this will be the year of medical industry breaches," said Dave Kennedy, chief executive of TrustedSEC LLC. In the past decade, cybercriminals focused their efforts on attacking banks and retailers to steal financial data including online banking credentials and payment card numbers. But as those companies boost security, using stolen credit card numbers has become more difficult. Their prices on criminal exchanges have also dropped, prompting hackers to turn to the less-secure medical sector, just as the amount of digital healthcare data is growing dramatically, Kennedy said.
Stolen healthcare data can be used to fraudulently obtain medical services and prescriptions as well as to commit identity theft and other financial crimes, according to security experts. Criminals can also use stolen data to build more convincing profiles of users, boosting the success of scams. "All of these factors are making healthcare information more attractive to criminals," said Rob Sadowski, marketing director at RSA, the security division of EMC Corp.
RSA Executive Chairman Art Coviello recently wrote in a letter to customers that he expected well-organized cybercriminals to turn their attention to stealing personal information from healthcare providers. "A name, address, social and a medical identity ... That's incredibly easy to monetize fairly quickly," said Bob Gregg, CEO of ID Experts, which sells identity protection software and services. Identities can sell for $20 apiece, or more, he said. Insurers, medical equipment makers and other companies say they have been preparing for breaches after seeing the waves of attacks on other industries.
Cigna Corp has looked to financial and defense companies for best practices, including hiring hackers to break into its systems, said Chief Executive David Cordani. Attempts to break into corporate systems to probe for information are a constant, he said in an interview.
St Jude Medical Inc CEO Daniel Starks said the company increased investment in cybersecurity significantly over the last few years, to protect both patient data and the medical devices it manufactures. "You may see from time to time law enforcement briefings on nation-based (intellectual property) issues, espionage," he said. "Those are things that we take very seriously and have been briefed on and that we work to guard against."
The insurers UnitedHealth Group Inc and Aetna Inc have warned investors about the risks of cyber crime in their annual reports since 2011. UnitedHealth has said the costs to eliminate or address the threats could be significant and that remediation may not be successful, resulting in lost customers. In response to the Anthem attack, UnitedHealth spokesman Tyler Mason said in an emailed statement: "We are in close contact with our peers in ... the industry cybersecurity organization, and are monitoring our systems and the situation closely."
Aetna has cited the automated attempts to gain access to public-facing networks, denial of service attacks that seek to disrupt websites, attempted virus infections, phishing and efforts to infect websites with malicious content. Aetna spokeswoman Cynthia Michener said in a statement: "We closely follow the technical details of every breach that's reported to look for opportunities to continually improve our own IT security program and the health sector's information protection practices broadly." ...
Anthem Inc, the No. 2 U.S. health insurer, last week disclosed a massive breach of its database containing nearly 80 million records, prompting investigations by state and federal authorities. That hack followed a breach last year at hospital operator Community Health Systems, which compromised some 4.5 million records.
"People feel that this will be the year of medical industry breaches," said Dave Kennedy, chief executive of TrustedSEC LLC. In the past decade, cybercriminals focused their efforts on attacking banks and retailers to steal financial data including online banking credentials and payment card numbers. But as those companies boost security, using stolen credit card numbers has become more difficult. Their prices on criminal exchanges have also dropped, prompting hackers to turn to the less-secure medical sector, just as the amount of digital healthcare data is growing dramatically, Kennedy said.
Stolen healthcare data can be used to fraudulently obtain medical services and prescriptions as well as to commit identity theft and other financial crimes, according to security experts. Criminals can also use stolen data to build more convincing profiles of users, boosting the success of scams. "All of these factors are making healthcare information more attractive to criminals," said Rob Sadowski, marketing director at RSA, the security division of EMC Corp.
RSA Executive Chairman Art Coviello recently wrote in a letter to customers that he expected well-organized cybercriminals to turn their attention to stealing personal information from healthcare providers. "A name, address, social and a medical identity ... That's incredibly easy to monetize fairly quickly," said Bob Gregg, CEO of ID Experts, which sells identity protection software and services. Identities can sell for $20 apiece, or more, he said. Insurers, medical equipment makers and other companies say they have been preparing for breaches after seeing the waves of attacks on other industries.
Cigna Corp has looked to financial and defense companies for best practices, including hiring hackers to break into its systems, said Chief Executive David Cordani. Attempts to break into corporate systems to probe for information are a constant, he said in an interview.
St Jude Medical Inc CEO Daniel Starks said the company increased investment in cybersecurity significantly over the last few years, to protect both patient data and the medical devices it manufactures. "You may see from time to time law enforcement briefings on nation-based (intellectual property) issues, espionage," he said. "Those are things that we take very seriously and have been briefed on and that we work to guard against."
The insurers UnitedHealth Group Inc and Aetna Inc have warned investors about the risks of cyber crime in their annual reports since 2011. UnitedHealth has said the costs to eliminate or address the threats could be significant and that remediation may not be successful, resulting in lost customers. In response to the Anthem attack, UnitedHealth spokesman Tyler Mason said in an emailed statement: "We are in close contact with our peers in ... the industry cybersecurity organization, and are monitoring our systems and the situation closely."
Aetna has cited the automated attempts to gain access to public-facing networks, denial of service attacks that seek to disrupt websites, attempted virus infections, phishing and efforts to infect websites with malicious content. Aetna spokeswoman Cynthia Michener said in a statement: "We closely follow the technical details of every breach that's reported to look for opportunities to continually improve our own IT security program and the health sector's information protection practices broadly." ...
As the number of Americans age 80 and older continues to rise, so does the percentage of patients with acute spinal conditions. A new study appearing in the Journal of Bone and Joint Surgery (JBJS) found significant benefit from surgical treatment for lumbar spinal stenosis with and without degenerative spondylolisthesis--debilitating spinal conditions causing leg and back pain, numbness and weakness--and no higher overall complication rate and no higher mortality for patients age 80 and older when compared to patients younger than age 80.
Between 2000 and 2010 the U.S. population age 80 and older increased 22 percent to 11.2 million, and approximately 47 percent of Americans age 60 and older have spinal stenosis, a narrowing of the spinal canal due to the wear and tear associated with aging.
In this study, researchers reviewed Spine Patient Outcomes Research Trial (SPORT) data for 105 patients, age 80 and older, and 1,130 patients younger than age 80 with lumbar stenosis alone or combined with degenerative spondylolisthesis. Patient clinical characteristics, including age, sex, ethnicity, college and work status, body mass index (BMI), smoking, comorbidities, level of back and leg pain, self-assessment of general health and treatment preference, were reviewed at baseline. Levels of pain, assessment of general health, complications, the need for revision surgery, and mortality were measured postoperatively for up to four years.
"This study demonstrates that surgery for the treatment of lumbar stenosis and degenerative spondylolisthesis provides significant benefit compared to nonoperative treatment in those patients over the age of 80," said lead study author Jeffrey A. Rihn, MD, an orthopaedic surgeon at the Rothman Institute and associate professor at Thomas Jefferson University Hospital in Philadelphia, Pa. "Patients in this age group had significant improvement in their function after surgery and complication rates comparable to the younger demographic. Based on the results of this study, surgery should be considered a viable treatment option for these lumbar conditions in patients older than age 80. Future studies are needed to better assess the cost-effectiveness of surgery in this patient population."
Reserving claim files for life time medical awards will be more accurate if studies such as this one are taken into account ...
Between 2000 and 2010 the U.S. population age 80 and older increased 22 percent to 11.2 million, and approximately 47 percent of Americans age 60 and older have spinal stenosis, a narrowing of the spinal canal due to the wear and tear associated with aging.
In this study, researchers reviewed Spine Patient Outcomes Research Trial (SPORT) data for 105 patients, age 80 and older, and 1,130 patients younger than age 80 with lumbar stenosis alone or combined with degenerative spondylolisthesis. Patient clinical characteristics, including age, sex, ethnicity, college and work status, body mass index (BMI), smoking, comorbidities, level of back and leg pain, self-assessment of general health and treatment preference, were reviewed at baseline. Levels of pain, assessment of general health, complications, the need for revision surgery, and mortality were measured postoperatively for up to four years.
"This study demonstrates that surgery for the treatment of lumbar stenosis and degenerative spondylolisthesis provides significant benefit compared to nonoperative treatment in those patients over the age of 80," said lead study author Jeffrey A. Rihn, MD, an orthopaedic surgeon at the Rothman Institute and associate professor at Thomas Jefferson University Hospital in Philadelphia, Pa. "Patients in this age group had significant improvement in their function after surgery and complication rates comparable to the younger demographic. Based on the results of this study, surgery should be considered a viable treatment option for these lumbar conditions in patients older than age 80. Future studies are needed to better assess the cost-effectiveness of surgery in this patient population."
Reserving claim files for life time medical awards will be more accurate if studies such as this one are taken into account ...
Arguments will be presented to the California Supreme Court next month in the case of an injured worker whose death from a prescription drug overdose was ruled noncompensable by the 4th District Court of Appeal in December 2013. The high court is scheduled to hear arguments in South Coast Framing v. Workers’ Compensation Appeals Board on March 3 in San Francisco. The court agreed last March to consider the case.
Brandon Clark, a South Coast employee, suffered back, head, neck and chest injuries when he fell off a roof while working for South Coast in 2008. His workers comp doctor prescribed an antidepressant, Vicodin and Neurontin, a drug used to treat neuropathic pain. Mr. Clark also was prescribed Xanax and Ambien by his personal physician in January 2009 for anxiety and sleep problems. He died the following July allegedly from the combined effects of the antidepressant, Neurontin, Xanax, Ambien and associated early pneumonia.
Mr. Clark’s wife and children filed for workers comp death benefits, contending that his death was a result of his work injury and related medications. She supported her claim with the report of Dr. Bressler who concluded that "[Brandon's] death was secondary to an accidental overdose." In reaching this conclusion, Dr. Bressler stated, "[t]he specific combination of medicines [Brandon] was on, which included Xanax, Ambien, Flexeril, Neurontin, amitriptyline, and hydrocodone, all separately and in combination had the capacity to induce respiratory depression, and even respiratory arrest." Thus there was a mixed cause of both industrial and non-industrially prescribed medications. However the agreed medical examiner, Dr. Thomas C. Bruff, had a more detailed analysis of the interaction of the industrial and non-industrial drugs and came to the opposite conclusion.
A workers' compensation judge concluded that Brandon Clark died as a result of medications he took after suffering an industrial injury. South Coast and its insurance carrier, Redwood Fire and Casualty Company administered by Berkshire Hathaway Homestate Companies petitioned for writ of review after the Workers' Compensation Appeals Board denied reconsideration of the WCJ's decision in favor of Brandon's wife and children.
The Court of Appeal in the unpublished case of South Coast Framing v WCAB (Clark) concluded that the Board erred in denying reconsideration because the WCJ's decision was not supported by substantial evidence. A physician's report and testimony must demonstrate his opinion is based on "reasonable medical probability."
The dispute will now be resolved by the California Supreme Court after oral arguments are heard next month ...
Brandon Clark, a South Coast employee, suffered back, head, neck and chest injuries when he fell off a roof while working for South Coast in 2008. His workers comp doctor prescribed an antidepressant, Vicodin and Neurontin, a drug used to treat neuropathic pain. Mr. Clark also was prescribed Xanax and Ambien by his personal physician in January 2009 for anxiety and sleep problems. He died the following July allegedly from the combined effects of the antidepressant, Neurontin, Xanax, Ambien and associated early pneumonia.
Mr. Clark’s wife and children filed for workers comp death benefits, contending that his death was a result of his work injury and related medications. She supported her claim with the report of Dr. Bressler who concluded that "[Brandon's] death was secondary to an accidental overdose." In reaching this conclusion, Dr. Bressler stated, "[t]he specific combination of medicines [Brandon] was on, which included Xanax, Ambien, Flexeril, Neurontin, amitriptyline, and hydrocodone, all separately and in combination had the capacity to induce respiratory depression, and even respiratory arrest." Thus there was a mixed cause of both industrial and non-industrially prescribed medications. However the agreed medical examiner, Dr. Thomas C. Bruff, had a more detailed analysis of the interaction of the industrial and non-industrial drugs and came to the opposite conclusion.
A workers' compensation judge concluded that Brandon Clark died as a result of medications he took after suffering an industrial injury. South Coast and its insurance carrier, Redwood Fire and Casualty Company administered by Berkshire Hathaway Homestate Companies petitioned for writ of review after the Workers' Compensation Appeals Board denied reconsideration of the WCJ's decision in favor of Brandon's wife and children.
The Court of Appeal in the unpublished case of South Coast Framing v WCAB (Clark) concluded that the Board erred in denying reconsideration because the WCJ's decision was not supported by substantial evidence. A physician's report and testimony must demonstrate his opinion is based on "reasonable medical probability."
The dispute will now be resolved by the California Supreme Court after oral arguments are heard next month ...
Patriot National, Inc. announced the acquisitions of Phoenix Risk Management Insurance Services, Inc., a managing general agent (MGA) headquartered in Roseville, California, and DecisionUR, a software company offering sophisticated and effective utilization review solutions in the workers' compensation industry. Material terms of the transactions were disclosed in a Form 8-K. The Company agreed to acquire substantially all of the assets of Phoenix for $1,099,000 in cash plus a performance-based cash earn-out of up to $3,000,000. Pursuant to the Acquisition Agreement, Phoenix will be entitled to an annual earn-out payment of up to $1,000,000 for the next three years subject to reduction on a pro-rata basis if the level of premium earned within the first year does not meet certain targets. The Company did not assume any material liabilities. The transaction closed on February 4, 2015.
"At Patriot we continuously look for opportunities to add complementary operations and innovative solutions to increase our reach and efficiency as a premier service provider in the insurance industry. With the acquisitions of Phoenix Risk Management and DecisionUR, we are executing our strategy to bolster our already strong franchise," said Steven Mariano, Chief Executive Officer of Patriot National. "Phoenix's well-established relationships with clients and carriers provide us with valuable contracts and access to new markets, and DecisionUR enhances the robust suite of services offered by Patriot Technology Solutions, which recently changed its name from Carrier and Technology Solutions, Inc. We anticipate that both of these transactions will be immediately accretive to EBITDA."
Phoenix Risk Management Insurance Services, Inc. is an MGA that has served the California workers' compensation industry for more than 36 years by offering niche market specialty insurance products and risk management tools.
DecisionUR's software provides a cost-efficient way to conduct workers' compensation utilization reviews by reducing the time to approve, modify, delay, defer or deny treatment requests. To further expedite decision-making, the software includes an automatic approval feature as well as custom protocols provided by clients to determine medical necessity. In addition, the technology allows clients to customize protocols based on their experience and document their statistical results. These custom protocols can interface with outside claims systems, bill review platforms and medical case management software programs.
Judith Haddad, EVP, Chief Information and Technology Officer of Patriot National, added, "With DecisionUR, we have acquired one of the most sophisticated, state-of-the art technology products in the marketplace today, and this gives our managed care operation an in-house tool that enhances its ability to control claim costs. This is another example of applying technology solutions to better serve policyholders in returning injured workers to their jobs."
Patriot National is a national provider of comprehensive outsourcing solutions within the workers' compensation marketplace for insurance companies, employers, local governments and reinsurance captives. Patriot National provides general agency services, specialty underwriting and policyholder services and claims administration services to its insurance carrier clients and other clients. Patriot National is headquartered in Fort Lauderdale, Florida with seven regional offices around the country ...
"At Patriot we continuously look for opportunities to add complementary operations and innovative solutions to increase our reach and efficiency as a premier service provider in the insurance industry. With the acquisitions of Phoenix Risk Management and DecisionUR, we are executing our strategy to bolster our already strong franchise," said Steven Mariano, Chief Executive Officer of Patriot National. "Phoenix's well-established relationships with clients and carriers provide us with valuable contracts and access to new markets, and DecisionUR enhances the robust suite of services offered by Patriot Technology Solutions, which recently changed its name from Carrier and Technology Solutions, Inc. We anticipate that both of these transactions will be immediately accretive to EBITDA."
Phoenix Risk Management Insurance Services, Inc. is an MGA that has served the California workers' compensation industry for more than 36 years by offering niche market specialty insurance products and risk management tools.
DecisionUR's software provides a cost-efficient way to conduct workers' compensation utilization reviews by reducing the time to approve, modify, delay, defer or deny treatment requests. To further expedite decision-making, the software includes an automatic approval feature as well as custom protocols provided by clients to determine medical necessity. In addition, the technology allows clients to customize protocols based on their experience and document their statistical results. These custom protocols can interface with outside claims systems, bill review platforms and medical case management software programs.
Judith Haddad, EVP, Chief Information and Technology Officer of Patriot National, added, "With DecisionUR, we have acquired one of the most sophisticated, state-of-the art technology products in the marketplace today, and this gives our managed care operation an in-house tool that enhances its ability to control claim costs. This is another example of applying technology solutions to better serve policyholders in returning injured workers to their jobs."
Patriot National is a national provider of comprehensive outsourcing solutions within the workers' compensation marketplace for insurance companies, employers, local governments and reinsurance captives. Patriot National provides general agency services, specialty underwriting and policyholder services and claims administration services to its insurance carrier clients and other clients. Patriot National is headquartered in Fort Lauderdale, Florida with seven regional offices around the country ...
Medications such as Abilify and Actiq are being used off-label to treat injured workers, prompting the workers comp sector to focus on curbing inappropriate prescribing that may be pricey and dangerous. Research shows that about one in five of all prescriptions are written for off-label use, or uses outside those approved by the U.S. Food and Drug Administration. According to the article in Business Insurance, experts say the practice has popped up in workers comp with drugs such as Abilify, an anti-psychotic that's FDA-approved as an add-on treatment for adults with depression, but inappropriately used as a lone treatment of injured workers' depression or anxiety.
"We're starting to see more Abilify being added to problematic claims, and Abilify really doesn't have a place in work comp," said Brian Carpenter, Atlanta-based senior vice president of pharmacy product development and clinical management for Healthcare Solutions. "It's a very expensive medication." About $6.5 billion was spent on Abilify in the United States in 2013, according to the IMS Institute for Healthcare Informatics. "Certainly because of the cost and the fact that ... we believe there are other drugs that are therapeutically effective to do what it does, we would certainly try to have a conversation with a physician to not use the drug to treat an injured worker", said Rita Wilson, Delray Beach, Florida-based CEO of Tower MSA Partners L.L.C., a Medicare secondary payer compliance company.
The impact of off-label drugs is difficult to quantify in workers comp since it's not always clear why a medication is prescribed, said Brigette Nelson, Cave Creek, Arizona-based senior vice president of workers compensation clinical management at St. Louis-based pharmacy benefit manager Express Scripts Inc. However, sources said off-label use in comp is seen primarily in pain management.
Opioids make up a large percentage of off-label prescriptions, said Michael Gavin, Duluth, Georgia-based president of medical cost management company PRIUM. "It has serious implications for injured worker health because the FDA is signaling to the physician community that these drugs should be used in really limited circumstances, and yet we see our work comp payer community spending $1.5 billion a year on them," Mr. Gavin said. It's important for PBMs and third-party administrators to be familiar with medications commonly prescribed off-label so they can appropriately flag and monitor claims, sources said.
State rules also can come into play. For example, a recent update proposed for the California Medical Treatment Utilization Schedule could limit off-label use by requiring physicians to prove with a study or alternate guideline that that treatment contrary to the state's schedule is appropriate. Off-label prescribing becomes a problem when physicians prescribe potentially dangerous and expensive drugs, such as "Actiq instead of Vicodin or Norco," said David Cooper, director of orthopedic surgery at The Knee Center in Wilkes-Barre, Pennsylvania. Actiq, which is FDA-approved for breakthrough, chronic cancer pain, is a drug that sources agree has no place in workers comp. "We've seen (Actiq) used in workers compensation for nonspecific low back pain," Mr. Gavin said. "That's incredibly damaging. That's a very powerful narcotic." He said use of Actiq has declined in recent years as "we've gotten smarter as a payer community."
One of the most important things a TPA can do is partner with the right doctors to avoid off-labeling from the onset, said Debbie Michel, Chicago-based president of TPA Helmsman Management Services L.L.C. And in states that allow it, conducting utilization reviews is considered a best practice to decide whether off-label use is appropriate, experts said ...
"We're starting to see more Abilify being added to problematic claims, and Abilify really doesn't have a place in work comp," said Brian Carpenter, Atlanta-based senior vice president of pharmacy product development and clinical management for Healthcare Solutions. "It's a very expensive medication." About $6.5 billion was spent on Abilify in the United States in 2013, according to the IMS Institute for Healthcare Informatics. "Certainly because of the cost and the fact that ... we believe there are other drugs that are therapeutically effective to do what it does, we would certainly try to have a conversation with a physician to not use the drug to treat an injured worker", said Rita Wilson, Delray Beach, Florida-based CEO of Tower MSA Partners L.L.C., a Medicare secondary payer compliance company.
The impact of off-label drugs is difficult to quantify in workers comp since it's not always clear why a medication is prescribed, said Brigette Nelson, Cave Creek, Arizona-based senior vice president of workers compensation clinical management at St. Louis-based pharmacy benefit manager Express Scripts Inc. However, sources said off-label use in comp is seen primarily in pain management.
Opioids make up a large percentage of off-label prescriptions, said Michael Gavin, Duluth, Georgia-based president of medical cost management company PRIUM. "It has serious implications for injured worker health because the FDA is signaling to the physician community that these drugs should be used in really limited circumstances, and yet we see our work comp payer community spending $1.5 billion a year on them," Mr. Gavin said. It's important for PBMs and third-party administrators to be familiar with medications commonly prescribed off-label so they can appropriately flag and monitor claims, sources said.
State rules also can come into play. For example, a recent update proposed for the California Medical Treatment Utilization Schedule could limit off-label use by requiring physicians to prove with a study or alternate guideline that that treatment contrary to the state's schedule is appropriate. Off-label prescribing becomes a problem when physicians prescribe potentially dangerous and expensive drugs, such as "Actiq instead of Vicodin or Norco," said David Cooper, director of orthopedic surgery at The Knee Center in Wilkes-Barre, Pennsylvania. Actiq, which is FDA-approved for breakthrough, chronic cancer pain, is a drug that sources agree has no place in workers comp. "We've seen (Actiq) used in workers compensation for nonspecific low back pain," Mr. Gavin said. "That's incredibly damaging. That's a very powerful narcotic." He said use of Actiq has declined in recent years as "we've gotten smarter as a payer community."
One of the most important things a TPA can do is partner with the right doctors to avoid off-labeling from the onset, said Debbie Michel, Chicago-based president of TPA Helmsman Management Services L.L.C. And in states that allow it, conducting utilization reviews is considered a best practice to decide whether off-label use is appropriate, experts said ...
Cost savings, better access to care, immediate triaging of injuries and faster claims closings are just some of the benefits of telemedicine, according to a report in the Claims Journal and workers’ compensation experts. An executive summary by the Texas Department of Insurance Workers’ Compensation Research Division defined telemedicine as the delivery of medical care and information via telecommunications networks and it’s use is growing according to a number of reports.
The TDI report noted two areas of the Texas workers’ compensation system that could benefit from telemedicine: the Designated Doctor and the Spinal Surgery Second Opinion processes. In both cases, injured workers must go to doctors other than his/her treating doctor for second opinion examinations. But by using telemedicine, an injured worker could have access to designated doctors or second opinion spinal specialists already familiar with the workers’ compensation system. The report indicated some of the benefits could include "greater conformity among second opinions, increased injured worker satisfaction with the process, fewer disputes, and an electronic record of procedures followed."
Another benefit of telemedicine is that employees working in remote locations could still seek treatment guidance. The TDI report noted that Texas, especially could benefit, since it is a state that is 80 percent rural. The report noted that more than half of all Texas claims are filed in counties officially designated as rural. One drawback - the report noted that telecommunications infrastructure limitations currently exist in those regions.
Kim Haugaard, vice president of network and medical operations at Texas Mutual Insurance Company, explained why the company is considering the use of telemedicine. "Texas is a very expansive geographical area, and in many rural areas there are very few or no medical providers to administer medical care," said Haugaard. "Injured workers may have to travel a significant distance to obtain medical care - telemedicine is an option that we are exploring." Haugaard explained the benefits of telemedicine include:
1) Improvement on access to care in rural areas.
2) The ability to provide fast non-emergency care.
3) Improved cost efficiency by reducing non-emergency care delivered by hospitals.
4) A reduction in travel time by triaging an injury for medical severity and referral to the most appropriate level of care.
Jodi Mathy, senior claims consultant at Wisconsin-based HNI said she doesn’t have any clients that are utilizing telemedicine for workers’ compensation treatment currently. "I do have many more clients that are engaging 24/7 nurse triage which I think is the baby step before telemedicine. Companies like TriageNow have a smartphone app that allows the injured worker to take pictures and send them to the nurse real-time. We do see telemedicine becoming more popular on the general health side of things. In fact, HNI makes Anthem’s LiveHealthOnline available for its employees," said Mathy. According to Mathy, based on current estimates there will be a physician shortage in the near future. "Telemedicine will allow for early intervention and triage of less complex claims. It will decrease wait times that will lend itself to shorter claim durations," said Mathy. "The initial interactions will also be less costly than an ER or urgent care visit."
When asked about the drawbacks, Haugaard said that though telemedicine not a new concept, it is relatively new to the workers’ compensation market. "We believe it will eventually be widely adopted in workers’ compensation, but until then there are concerns about how the concept of telemedicine will be received by injured workers," said Haugaard. Mathy thinks the main drawback will be in the patient’s experience. "The lack of face-to-face care may feel cold and impersonal and the employee may become put off by the experience. Also the lack of in-person examination could lend itself to additional diagnostics tests being ordered by MD’s to confirm/rule out possible diagnosis," Mathy said ...
The TDI report noted two areas of the Texas workers’ compensation system that could benefit from telemedicine: the Designated Doctor and the Spinal Surgery Second Opinion processes. In both cases, injured workers must go to doctors other than his/her treating doctor for second opinion examinations. But by using telemedicine, an injured worker could have access to designated doctors or second opinion spinal specialists already familiar with the workers’ compensation system. The report indicated some of the benefits could include "greater conformity among second opinions, increased injured worker satisfaction with the process, fewer disputes, and an electronic record of procedures followed."
Another benefit of telemedicine is that employees working in remote locations could still seek treatment guidance. The TDI report noted that Texas, especially could benefit, since it is a state that is 80 percent rural. The report noted that more than half of all Texas claims are filed in counties officially designated as rural. One drawback - the report noted that telecommunications infrastructure limitations currently exist in those regions.
Kim Haugaard, vice president of network and medical operations at Texas Mutual Insurance Company, explained why the company is considering the use of telemedicine. "Texas is a very expansive geographical area, and in many rural areas there are very few or no medical providers to administer medical care," said Haugaard. "Injured workers may have to travel a significant distance to obtain medical care - telemedicine is an option that we are exploring." Haugaard explained the benefits of telemedicine include:
1) Improvement on access to care in rural areas.
2) The ability to provide fast non-emergency care.
3) Improved cost efficiency by reducing non-emergency care delivered by hospitals.
4) A reduction in travel time by triaging an injury for medical severity and referral to the most appropriate level of care.
Jodi Mathy, senior claims consultant at Wisconsin-based HNI said she doesn’t have any clients that are utilizing telemedicine for workers’ compensation treatment currently. "I do have many more clients that are engaging 24/7 nurse triage which I think is the baby step before telemedicine. Companies like TriageNow have a smartphone app that allows the injured worker to take pictures and send them to the nurse real-time. We do see telemedicine becoming more popular on the general health side of things. In fact, HNI makes Anthem’s LiveHealthOnline available for its employees," said Mathy. According to Mathy, based on current estimates there will be a physician shortage in the near future. "Telemedicine will allow for early intervention and triage of less complex claims. It will decrease wait times that will lend itself to shorter claim durations," said Mathy. "The initial interactions will also be less costly than an ER or urgent care visit."
When asked about the drawbacks, Haugaard said that though telemedicine not a new concept, it is relatively new to the workers’ compensation market. "We believe it will eventually be widely adopted in workers’ compensation, but until then there are concerns about how the concept of telemedicine will be received by injured workers," said Haugaard. Mathy thinks the main drawback will be in the patient’s experience. "The lack of face-to-face care may feel cold and impersonal and the employee may become put off by the experience. Also the lack of in-person examination could lend itself to additional diagnostics tests being ordered by MD’s to confirm/rule out possible diagnosis," Mathy said ...
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 ...
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 ...
Currently, doctors have to throw away more than 80 percent of donated tissue used for joint replacements because the tissue does not survive long enough to be transplanted. Now, following a recent study, University of Missouri School of Medicine researchers have developed a new technology that more than doubles the life of the tissue. This new technology was able to preserve tissue quality at the required level in all of the donated tissues studied, the researchers found.
"It's a game-changer," said James Stannard, co-author of the study and J. Vernon Luck Sr. Distinguished Professor of Orthopaedic Surgery at the MU School of Medicine. "The benefit to patients is that more graft material will be available and it will be of better quality. This will allow us as surgeons to provide a more natural joint repair option for our patients."
According to the report in Medical News Daily, the technology, called the Missouri Osteochondral Allograft Preservation System, or MOPS, more than doubles the storage life of bone and cartilage grafts from organ donors compared to the current preservation method used by tissue banks. In traditional preservation methods, donated tissues are stored within a medical-grade refrigeration unit in sealed bags filled with a standard preservation solution. MOPS utilizes a newly developed preservation solution and special containers designed by the MU research team that allows the tissues to be stored at room temperature.
"Time is a serious factor when it comes to utilizing donated tissue for joint repairs," said study co-author James Cook, director of MU's Comparative Orthopaedic Laboratory and the Missouri Orthopaedic Institute's Division of Research. "With the traditional preservation approach, we only have about 28 days after obtaining the grafts from organ donors before the tissues are no longer useful for implantation into patients. Most of this 28-day window of time is used for testing the tissues to ensure they are safe for use. This decreases the opportunity to identify an appropriate recipient, schedule surgery and get the graft to the surgeon for implantation."
"For patients with joint problems caused by degenerative conditions, metal and plastic implants are still a very good option," Stannard said. "When the end of a bone that forms a joint is destroyed over time, the damage is often too extensive to use tissue grafts. However, for patients who experience trauma to a joint that was otherwise healthy before the injury, previous activity levels needn't be drastically altered if we can replace the damaged area with living tissue."
Donor tissue grafts have been used for many years as a way to fill in damaged areas of a joint, as an alternative to removing bone and implanting metal and plastic components. The body accepts bone and cartilage grafts without the need for anti-rejection drugs, and the donor tissue becomes part of the joint. However, the method of preserving the grafts themselves has limited the amounts of quality donor tissue available to surgeons ...
"It's a game-changer," said James Stannard, co-author of the study and J. Vernon Luck Sr. Distinguished Professor of Orthopaedic Surgery at the MU School of Medicine. "The benefit to patients is that more graft material will be available and it will be of better quality. This will allow us as surgeons to provide a more natural joint repair option for our patients."
According to the report in Medical News Daily, the technology, called the Missouri Osteochondral Allograft Preservation System, or MOPS, more than doubles the storage life of bone and cartilage grafts from organ donors compared to the current preservation method used by tissue banks. In traditional preservation methods, donated tissues are stored within a medical-grade refrigeration unit in sealed bags filled with a standard preservation solution. MOPS utilizes a newly developed preservation solution and special containers designed by the MU research team that allows the tissues to be stored at room temperature.
"Time is a serious factor when it comes to utilizing donated tissue for joint repairs," said study co-author James Cook, director of MU's Comparative Orthopaedic Laboratory and the Missouri Orthopaedic Institute's Division of Research. "With the traditional preservation approach, we only have about 28 days after obtaining the grafts from organ donors before the tissues are no longer useful for implantation into patients. Most of this 28-day window of time is used for testing the tissues to ensure they are safe for use. This decreases the opportunity to identify an appropriate recipient, schedule surgery and get the graft to the surgeon for implantation."
"For patients with joint problems caused by degenerative conditions, metal and plastic implants are still a very good option," Stannard said. "When the end of a bone that forms a joint is destroyed over time, the damage is often too extensive to use tissue grafts. However, for patients who experience trauma to a joint that was otherwise healthy before the injury, previous activity levels needn't be drastically altered if we can replace the damaged area with living tissue."
Donor tissue grafts have been used for many years as a way to fill in damaged areas of a joint, as an alternative to removing bone and implanting metal and plastic components. The body accepts bone and cartilage grafts without the need for anti-rejection drugs, and the donor tissue becomes part of the joint. However, the method of preserving the grafts themselves has limited the amounts of quality donor tissue available to surgeons ...
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 ...
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 ...
State Fund filed for a 9% increase in collectible premium that will apply to new and renewal workers’ compensation policies effective on or after April 1, 2015. Although the rate plan is designed to generate an overall 9% increase in collectable premium, the impact to individual policies will vary. Details of the rate filing include:
1) Adoption of the Workers’ Compensation Insurance Rating Bureau’s pure premium recommendations and classification relativities for base rates.
2) An approximate 5% increase to tiers A and B.
3) The elimination of the group insurance discount.
4) A 25% increase in minimum premiums.
5) A 6.5% and 4.8% increase to the Los Angeles County and Southern California Area territory factors, respectively.
6) Schedule rating threshold will move from $10,000 in base premium to $25,000.
The SCIF says there are several reasons for this rate increase. The latest reports from the Workers’ Compensation Insurance Rating Bureau (WCIRB) show that the rate of California workers filing lost-time workers’ compensation claims is at its highest level in 10 years. Unlike the rest of the country where claims frequency is on a downward trend, updated research by the WCIRB shows the rate of claims in California rose 0.9% in the first nine months of 2014 and the trend is driven by the experience in Southern California.
In 2013 SCIF introduced a new tiered rating plan that it says has greatly improved its ability to price individual risks and serve more California employers. Part of this rate plan also reflects an adjustment to its pricing model, which will continue to evolve over time.
Because it is a vital provider of workers’ compensation insurance in California, State Fund is committed to maintaining its financial strength and open door policy of serving California’s businesses across all industries.
In addition to our tiered pricing structure, it will continue to offer schedule rating, claims-free credit, and premium discounts to underwrite individual accounts ...
1) Adoption of the Workers’ Compensation Insurance Rating Bureau’s pure premium recommendations and classification relativities for base rates.
2) An approximate 5% increase to tiers A and B.
3) The elimination of the group insurance discount.
4) A 25% increase in minimum premiums.
5) A 6.5% and 4.8% increase to the Los Angeles County and Southern California Area territory factors, respectively.
6) Schedule rating threshold will move from $10,000 in base premium to $25,000.
The SCIF says there are several reasons for this rate increase. The latest reports from the Workers’ Compensation Insurance Rating Bureau (WCIRB) show that the rate of California workers filing lost-time workers’ compensation claims is at its highest level in 10 years. Unlike the rest of the country where claims frequency is on a downward trend, updated research by the WCIRB shows the rate of claims in California rose 0.9% in the first nine months of 2014 and the trend is driven by the experience in Southern California.
In 2013 SCIF introduced a new tiered rating plan that it says has greatly improved its ability to price individual risks and serve more California employers. Part of this rate plan also reflects an adjustment to its pricing model, which will continue to evolve over time.
Because it is a vital provider of workers’ compensation insurance in California, State Fund is committed to maintaining its financial strength and open door policy of serving California’s businesses across all industries.
In addition to our tiered pricing structure, it will continue to offer schedule rating, claims-free credit, and premium discounts to underwrite individual accounts ...
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." ...
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." ...
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.
...
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.
...
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." ...
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." ...
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 ...
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 ...
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 ...
"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 ...
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 ...
"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 ...
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 ...
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 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 ...
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 ...
