Thursday, November 28, 2013, 09:54 AM - Understanding the CA WC systemWorkers' comp is not a sexy topic.
Writing a blog on a subject so specific and detailed as California workers' compensation tends to focus on what's wrong and what needs to be done to fix it.
And despite wave after wave of well intentioned reform, problems continue to pile up with the system. It seems not to matter whether the reforms were politically based or evidence based, whether the reforms were part of a negotiated compromise of broad stakeholder groups or some legislative legerdemain under the aegis of strong Capitol leadership .
You might not feel very thankful if you were a disabled worker waiting months to get a QME panel. Or months to have an anonymous physician do an IMR review on a UR decision rendered by a doctor who looked at almost none of the medical records.
So it's no surprise that there are many embittered workers and families in "the system" who feel that the benefits are neither unencumbered, expeditious or adequate.
But there are also many things to be thankful for, and here are a few:
-a corps of workers' comp judges who are mostly diligent and concerned for the welfare of California workers
-a system of "user funding" that has given the WCAB some relative stability in comparison to the funding problems recently plaguing California's civil justice system
-a workers' comp press that assiduously follows developments in the field, publishing helpful updates and analysis
-a workers' comp bar that largely (although with some outliers in the applicant and defense bar) is decent, honorable and devoted to the interests of clients
-a medical system that for all its delays, flaws and some excesses, may well be more inclusive for many workers than other forms of coverage which they would access
-at a time where there really is no consensus about how to handle large numbers of undocumented immigrants, the workers' comp system generally treats them with respect
-the very idea that a worker does not need to prove their employer or someone else was at fault to recover benefits or get medical treatment
Yes, in certain ways the California workers' comp system is dysfunctional. There is much to be done.
But today, join me in a short mental note of some of the good things.
Here's hoping that readers enjoy the holiday weekend doing something meaningful.
Sunday, November 24, 2013, 10:45 AM - Medical treatment under WCOver the last week there has been some controversy brewing about whether the DWC was illegally or unethically interfering in the IMR process.
This controversy came to light after a memo surfaced from a workers' compensation judge who attended a recent training for judges conducted by the DWC in San Francisco.
Since I was not there, I can not vouch for what was actually said.
But the memo which has made the rounds charges that DWC Medical Unit Director Rupali Das and DIR attorney Kathy Zalewski
"acknowledged that they had received phone calls from claims administrators protesting IMR decisions which had overturned UR decisions denying care. Both admitted that they had intervened with Maximus to issue new decisions upholding the disputed UR decisions denying medical care to injured workers."
The memo mused whether "Injured workers may rightly question whether this is independent medical review".
Apparently this set off alarm at the DWC, causing a clarifying memo to be sent from the DWC, noting that "some of the discussion of DWC's quality oversight of Independent Medical Review (IMR) determinations was imprecise."
The DWC clarified that it does do random reviews of IMR determinations made by Maximus. Further, "in addition, interested members of the public may call particular determinations to DWC's attention. In those instances, the determination at issue is reviewed by Dr. Das and other DWC and Maximus staff. "
However, the DWC's clarifying e-mail claims that "No inquiry from a party of the public has resulted in a determination being reversed."
According to the DWC, the determination is several cases was not overturned on the merits because of a complaint from a party.
Rather, the DWC says that "On two occasions, amended determinations were issued in cases where Maximus made a determination on the merits in the absence of medical records provided by the parties. Both determinations were rescinded, as the cases were deemed ineligible for IMR by DWC due to the lack of records."
An article written by Greg Jones, Western Bureau Chief for Workcompcentral.com quotes DWC spokeswoman Erika Monterroza as claiming that IMR decisions 13-602 and 13-740 had been rescinded.
Monterroza was quoted as follows:
"In these two cases, there had been no UR determination on the merits of the treatment requested because no records were available for the UR reviewer. As such, those cases should have been deemed ineligible for IMR from the outset, but were not. The determinations were rescinded on the basis of the disputes' ineligibility for IMR and until there are UR determinations on the merits, there is no basis to resubmit them for IMR review."
The article by Jones points out that in at least 4 cases (IMR 13-676, 13-10-3, 13-114 and 13-119) the UR decision was upheld even though the claims administrator had not submitted records.
There is no indication that the DWC intervened to invalidate those decisions.
The concern here of some is over whether the DWC is cherry-picking and taking sides. That may be the casee.
But then again it may be that the DWC , with limited resources , has simply not had the ability to do oversight in all needed cases but did do it in some selected cases.
A fix to all of this could be achieved through clear regulations. Maximus would not be permitted to act on any case where records had not been made available to the UR reviewer. Maximus would not be permitted to act on any case where records were not supplied to the IMR reviewer as required by the IMR regs. Any review undertaken by Maximus under those situations would be null and void. An adjuster's failure to provide records to the UR reviewer or the Maximus reviewer would constitute a waiver of any objection to the treatment.
Such a policy would encourage compliance by adjusters and incentivize them to provide records. Moreover, it would relieve the DWC from concerns that it was improperly intervening in the process.
Saturday, November 16, 2013, 04:09 PM - Medical treatment under WCThe long-awaited Valdez decision is finally here.
In a November 2013 decision, the California Supreme Court handed a victory to injured workers in that it rejects the notion that California statutes only allow reports of network MPN doctors into evidence in benefit disputes.
That was essentially the position of the California Workers Compensation Appeals Board, which held in an July 14,2011 en banc decision that where unauthorized medical treatment is obtained outside a validly established and properly noticed Medical Provider Network (MPN), reports from the non-MPN doctors are inadmissible.
In so holding the statewide WCAB was dealing with a situation in which the applicant attorney obviously tried to take "medical control" by sending the worker to a doctor of the lawyer's choice, a doctor who was not on the Medical Provider Network adopted by the employer.
This is a strategy often employed in Southern California, where many attorneys refer workers to non-MPN doctors who have been willing to treat.
Often those doctors would treat "on a lien", with the result being a primary factor in a huge lien backlog at many Southern California WCAB district offices. The strategy has not been used so much in Northern California, since the pool of doctors willing to treat under such arrangements has historically been much smaller north of Fresno.
By "taking medical control", the worker's attorney could often get reports that served as a basis for temporary disability payments or even as a basis for rating permanent disability. Proponents of this approach asserted that friendly doctors would order the requisite tests, often bypassing the treatment denials that plagued other workers.
Opponents cited the costs of this approach, complaining that some doctors had cozy relationships with attorneys, ordering every diagnostic test known to modern medicine, running up huge bills in the process.
So all of this was fodder for the 2012 legislative fix known as SB 863.
Trying to create a patch to prevent this, SB 863 did three things. First, it tightened up the law on MPNs in various ways. Labor Code 4603.2(a)(3) makes it clear that where a worker impermissibly treats outside the MPN, the employer will not be liable for treatment costs. MPN validity is now an issue to be decided by expedited hearing. Second, Labor Code 4605 was amended to limit the effect of reports by unauthorized non-network physicians. While the employee may still get at his or her own expense a consulting or attending physician, 4605 now provides in part that "Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation". Third, lien procedural hurdles were enacted.
Some of the lien provisions of SB 863 are currently in doubt, but the other two provisions make the "medical control" strategy significantly riskier than before.
So after the enactment of SB 863, some may find the Supreme Court's Valdez decision anti-climactic.
As the Supreme Court decision notes, "These statutory changes may encourage employees to use MPN services. However, they do not foreclose other avenues of treatment, or bar the Board from considering medical reports generated outside of an MPN when it reviews applications for disability benefits."
The en banc WCAB decision was troubling.
One could easily imagine situations where a workers' comp judge should be able to consider the opinion of worker-obtained non-network doctors.
Perhaps a worker obtained such opinion at his or her own expense, having diagnostic tests that were not authorized through the MPN. Perhaps the worker pursued tests or treatment outside the utilization review/Independent Medical review gauntlet that currently seems so dysfunctional. Those tests and treatments may have yielded critical information.
And at the end of the day, a worker should be able to present some evidence of his or her choice on her own case.
The pendulum may have swung towards cookie-cutter justice, but the result in Valdez allows some daylight for workers' and their attorneys.
The court's opinion in Elayne Valdez v. Workers'Compensation Appeals Board and Warehouse Demo Services can be found here:
The WCAB's en banc decision in Valdez can be seen here:
http://www.dir.ca.gov/wcab/EnBancdecisi ... ldezE2.pdf
Sunday, November 10, 2013, 03:11 PM - Political developmentsOne of the key components of the 2012 California workers' comp reforms now appears to be on shaky ground.
Challenged by a group of medical, chiropractic, interpreter and copy service plaintiffs, the SB 863 lien activation fee may soon be a goner.
The issue was repeatedly argued this week in front of U.S. District Judge George Wu of the U.S. District Court of Central California.
Wu indicated that he plans to rule that the lien activation fee requirement violates the equal protection clause. While a written decision has not been
issued as of the date of this post, it appears less likely that Wu will find in favor of plaintiffs on their other theories, including the "takings clause" cause of action.
Wu is likely to issue an expansive injunction against enforcement of the lien activation fee, though that is not a certainty til an order is rendered.
An appeal by the DWC to the 9th U.S. Court of Appeals is probable, but it's also likely that a decision could turn up the pressure for more talks about comp reform.
It was never surprising that big lien claimants such as Kaiser, some union trust funds, and health plans such as Anthem Blue Cross would seek exemption from the lien activation fee requirement. Those providers have considerable political muscle, and were never seen as abusers of the comp system.
But other medical and service providers were often seen as abusers, and the backlog of liens in the Los Angeles area WCAB district offices was astronomical.
Unfortunately, some smaller but legitimate service providers are subject to the lien activation fee requirement, and their equal protection argument is probably appropriate.
It is ironic that in many ways the lien fee provision seems to be one of the most successful features of SB 863. The lien backlog has been substantially reduced as liens get worked through the system, whereas on the other hand substantial IMR delays are building and the QME process remains problematic.
One solution would be for the legislature to end the lien activation fee exemption.
But this might require some legislative heavy lifting to convince unions and healthcare insurers to contribute to the solution by paying activation fees.
It's not clear what might happen to liens already dismissed because an activation fee was not paid. Will those dismissals be set aside? Do some of those liens have such poor underlying documentation that the lien claimants will not bother to pursue them?
And even if the statute's lien provisions are declared unconstitutional, will IMR, IBR and the toughened MPN requirements of SB 863 make the "lien problem" less significant going forward?
Stay tuned. I'll be commenting as Judge Wu issues a written decision soon.
Wednesday, November 6, 2013, 10:23 PM - Political developmentsMarty Morgenstern is leaving.
Since 2011 Morgenstern served as Governor Brown's Secretary of the California Labor and Workforce Development Agency. Morgenstern had deep ties to many figures in California's labor movement and to some in the labor think tanks at UC.
Though he was essentially a figurehead and for the most part not deeply involved in the details of California workers' comp issues, Morgenstern was a source of advice to Brown on worker issues.
Stepping into Morganstern's position will be David Lanier, who has been serving as Brown's deputy legislative affairs agency.
Most comp observers will not be familiar with Lanier, as he has largely been under the radar in workers' comp circles. Yet, a quick stroll through the internet reveals that Lanier has been a point of contact within the Governor's office on many comp issues, including various comp regulatory issues.
So it's not surprising that he has been awarded the post.
Lanier comes to the forefront at an interesting time.
California workers' comp rates are likely to be jumping upwards.
Uncertainty abounds regarding the wisdom and effect of the 2012 reforms.
Many legislators, union folks and perhaps Brown himself may have been told that in 2012 "we fixed workers' comp".
But that's now in doubt.
Consider these issues:
- How will changing doctor compensation to RBRVS based pay affect doctor availability and overall medical costs?
-With requests for Independent Medical Review now topping 20,000 requests per month (in October 2013) and the time for Maximus to process IMR requests growing, is the IMR system already in trouble?
-Can the Division of Workers' Compensation really manage the troubled QME request process?
-What happens if the constitutional challenge to lien fees succeeds? Will the Federal court enjoying enforcement of the lien activation fee requirement? If so, what result might ensue?
-What will happens with the slew of remaining regulatory rules that must be issued by the DWC?
-At the end of the day, will we see that SB 863 was poorly conceived and resulted in unintended consequences? Or will SB 863 bend the cost curve and mitigate what would otherwise be a new workers' comp crisis?
-How will Governor Brown deal with the vacancies at the WCAB?
-What will the Brown Administration do with the $120 million fund it is supposed to administer for those with high earnings losses?
These are but a few of the issues that are in play as 2013 winds to a close.
Lanier may or may not be involved in the details.
What is sure is that he will be presiding for the Brown administration over these issues at an interesting time for workers' comp.