JOSEPH MARTIN vs. CITY OF UKIAH, Permissibly Self-Insured, Administered By REDWOOD EMPIRE MUNICIPAL FUND

This case involves a dispute between Joseph Martin, the applicant, and the City of Ukiah, permissibly self-insured, administered by Redwood Empire Municipal Fund, the defendant, regarding the fees for air ambulance services provided to the applicant in 2008. The Workers' Compensation Appeals Board denied the Petition for Reconsideration, finding that the provisions of Rule 9789.70(a) and (b) of the California Code of Regulations, which limit the fees for ambulance services, would not apply to this case even if Rule 9789.70(c) had never been adopted. The Board found that the Airline Deregulation Act of 1978 preempts all state laws that "relate[] to a price, route, or

CITY OF UKIAH, Permissibly Self-Insured, administered by REDWOOD EMPIRE MUNICIPAL FUND JOSEPH MARTIN WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAJOSEPH MARTIN, Applicant,vs.CITY OF UKIAH, Permissibly Self-Insured, administered by REDWOODEMPIRE MUNICIPAL FUND, Defendants.Case No. ADJ6461309(Santa Rosa District Office)OPINION AND ORDER DENYING RECONSIDERATION            We have considered the allegations of the Petition for Reconsideration and the contents of the Report of the workers’ compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, for the reasons stated in the WCJ’s Report, which we adopt and incorporate, and for the following reasons, we deny reconsideration.            Administrative Director (AD) Rule 9789.70 relates generally to reasonable fees for ambulance services. However, subdivision (c) of Rule 9789.70 provides: “This section is not applicable to services provided by any air ambulance provider which at the time of service is an ‘air carrier’ as defined in Title 49 U.S.C.A. Section 40102, a part of the Airline Deregulation Act of 1978 as amended.” (Cal. Code Regs., tit. 8, § 9789.70(c).)            Subdivision (c) was added to Rule 9789.70 effective July 13, 2010. According to the AD’s Notice of Proposed Rulemaking and Informative Digest, Rule 9789.70(c) was adopted because: “Section 9789.70, which establishes fees for ambulance services, may be in conflict with the federal Airline Deregulation Act of 1978, to the extent that Section 9789.70 sets fees for providers which are air carriers within the meaning of the Act. This regulation amendment is intended to eliminate any conflict with the Act.”1 1 http://www.dir.ca.gov/dwc/DWCPropRegs/Ambulance regulations/NOTICE AirAmbulance.pdf, at p. 2. ,             Defendant argues that Rule 9789.70(c) cannot be applied retroactively to air ambulance services rendered before its July 13, 2010 effective date, such as the 2008 air ambulance services in this

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