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While the 2015 legislative season is over, it’s not too late to analyze the Governor Brown’s veto messages on two prominent workers’ comp bills, AB 305 and AB 1542.

Not that it was a surprise that those were vetoed. The word had been out for some time that Brown’s administration favored neither.

AB 305 (Lorena Gonzalez), aimed at preventing certain types of alleged gender based discrimination in workers’ comp, had secured endorsements from a range of labor unions and women’s organizations.

Opponents claimed it was not necessary, and some feared it would endanger the apportionment provisions of the Labor Code.

Brown’s veto message on AB 305 stated this:

“To the Members of the California State Assembly:

I am returning Assembly Bill 305 without my signature.  

This bill prohibits the use of certain gender-related characteristics in the calculation of permanent disability benefits for injuries occurring on or after January 1, 2016.

The workers compensation system must be free of gender-bias. No group should receive less in benefits because of an immutable characteristic. However, this bill is based on a misunderstanding of the American Medical Association’s evidence-based standard, which is the foundation of the permanent disability ratings, and replaces it with an ill-defined and unscientific standard.

Sincerely,

Edmund G. Brown Jr.

Stakeholders can debate the presence or absence of gender discrimination in workers’ comp and the need for a bill. I get that.

But what about Brown’s stated reason for opposition?

The Washington Post sometimes gives “Pinocchios” to statements that are not factually correct.

How would Brown’s veto message  stack up under such a standard?

Brown appears to be conflating the MTUS treatment standards (which, based on the ODG Guidelines, are supposed to be evidence based) with the AMA Guides.

California uses the AMA Guides, 5th edition. Various states use various editions of the AMA Guides. Creation of the Guides goes back to the late 1950’s when the AMA created an ad hoc committee to establish a rating system of impairments. For over a decade the committee published various guide chapters in the AMA’s journal. The first version of the Guides was in 1971 and the second in 1983.

Saying that the Guides are “evidence based” is a real stretch. The process by which the various AMA impairment percentages were established seems to have been less than transparent, and the construction of the book itself was done by committee. Different versions of the Guides take different approaches. And among different body systems there appear to be different approaches. The fact that a doctor group’s committee settled on a formula does not make it “evidence based”.

I’ll give at least one Pinocchio to whoever wrote that for Brown.

AB 1542, which passed the California Assembly  and Senate with only one no vote, would have allowed the DWC to continue neuropsychology as a QME specialty.

The Senate analysis framed it this way:

“The DWC may only certify a psychologist if the psychologist is board certified by the Board of Psychology or a board recognized by the DWC. Currently, Clinical Neuropsychology is not a recognized specialty by the Board of Psychology. Despite this, the DWC recognized Clinical Neuropsychologists as QMEs until recent regulations removed Clinical Neurologists from the list of potential QMEs. While this decision brought the QME regulations in line with statute, it was met with disappointment from some stakeholders.

AB 1542 returns the QME process to the prior status quo, allowing clinical neuropsychologists to be appointed as QMEs.”

Okay. So AB 1542 was a legislative fix to something which hadn’t been seen as a problem for decades. Easy enough, right? After all, we are talking about evaluating workers who have alleged brain trauma.

Doctor groups lined up in favor of AB 1542.

But the veto message of AB 1542 stated this:

To the Members of the California State Assembly:

I am returning Assembly Bill 1542 without my signature.  

This bill requires the Division of Worker’s Compensation to appoint qualified clinical neuropsychologists as Qualified Medical Examiners.

This bill undermines the Division of Workers’ Compensation’s authority to apply consistent standards when it determines eligible medical specialties for the Qualified Medical Evaluator panel.  The Division is not in the position to determine the validity of a physician’s qualifications.  That power resides with the physician’s licensing board.  If the Board of Psychology believes there is value in recognizing neuropsychology as a subspecialty, it should do so.

Sincerely,

Edmund G. Brown Jr

However, as noted by Steve Cattolica, an advocate for CSIMS:

“The governor’s veto message was replete with erroneous statements. The Medical Board and Board of Psychology do not recognize subspecialties. If they did, the Medical Board would formally license specialties in Internal Medicine, Orthopedics, Neurology and others. They don’t. The only reference to recognition of a specialty by the Medical Board of California concerns restrictions upon advertising, not the quality or depth of the medical training of those physicians. Again, if the governor’s information were accurate, the subspecialties formally recognized by the Board of Chiropractic would need to be among the designations for QMEs. Inconsistent with the basis for its opposition to AB 1542, the Division of Workers’ Compensation has emphatically stated it will not do so. Furthermore, the Board of Psychology does recognize the American Psychological Association and the specialty of clinical neuropsychology is recognized by the APA and the Canadian Psychology Association.”

Brown’s assertion that the Division is not in a position to determine physician qualifications is questionable.

Indeed, the whole controversy has led some to question the motivation of the administration, especially when there seemed to be no organized opposition to AB 1542 and when Republicans and Democrats were nearly unanimous on the issue.

David DePaolo of workcompcentral.com even mused whether someone was doing favors for the NFL, given current publicity about football player head trauma and the NFL’s desire to get a team to Los Angeles.

Although I personally wouldn’t go that far, his musing is definitely work reading and so here is a link to DePaolo’s column on the AB 1542 veto:

http://daviddepaolo.blogspot.com/2015/10/vetoes-and-bargain.html

I’ve yet to hear any speculation about whether the proponents of AB 305 and AB 1542 will be back next year with an amended effort on those issues.

But stay tuned.

Here is a link to the text and legislative analyses on AB 305 (Lorena Gonzalez):

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB305

To see a Harvard Law Review article which analyzes  whether the AMA Guides are objective and also looks at a number of gender issues with an earlier version of the AMA Guides, look here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1604322

The legislative analysis and text of AB 1542 can be found here:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1542

Julius Young

www.boxerlaw.com

www.workerscompzone.com

Julius Young

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