Oakland Workers Comp Blog by Attorney Julius Young.
http://www.workerscompzone.com/index.php
PERATA TO JOHN DUNCAN: DON'T PLAY ME FOR A FOOL
http://www.workerscompzone.com/index.php?entry=entry080508-213211
Apparently there was a sharp exchange between Duncan and Senate Pro Tem Don Perata. Perata may be termed out soon, but at the moment he is still probably the state's most powerful legislator.
Congratulations to the Workers Comp Executive for apparently being the first in the workers' comp press to cover the hearing.
Perata demanded details on the progress of the long-promised revise of the 2005 PDRS (permanent disability rating schedule). Studies have shown that ratings and awards to disabled workers are far lower under the 2005 PDRS.
Perata demanded answers, indicating he felt he was "getting kind of hosed".
The indication? Without prompt detailed answers as to the status of the PDRS revise, Duncan probably won't be confirmed.
Julius Young http://www.boxerlaw.com/news.html (you can subscribe to the blog by clicking on the RSS reader button at the lower right hand corner under "Most recent entries")
]]>ACOEM TO FEDS: DOCTORS PUSHED TO DOWNPLAY INJURIES
http://www.workerscompzone.com/index.php?entry=entry080506-221928
Weak on your acronyms? ACOEM is the American College of Occupational and Environmental Medicine. California now uses ACOEM standards as official treatment standards for most types of conditions.
ACOEM claims to be a source of "evidence based" assessments on medical treatment best practices.
ACOEM's president, Dr. Robert McLellan, charged that employers are pressuring doctors to downplay injuries. McLellan, a medical professor at Dartmouth, said that employers are "vastly underreporting" the extent of workplace injuries.
McLellan has contacted federal OSHA authorities about his concerns that doctors are being pressured. Some ACOEM members are "in-house" doctors employed by industry. Others are, for lack of a better term, "out-house" in that they are private doctors or doctors in clinics who treat at the request of employers.
ACOEM has been under criticism for being too cozy with industry for many years. University of California faculty have written recent studies of ACOEM documenting ACOEM's historic symbiotic relationship with industry and its record in muting inquiry into the effects of workplace toxins.
But perhaps Dr. McLellan's statements indicate that change is afoot at ACOEM. It's good to see ACOEM speaking out about corporate pressures on the doctors who treat worker injuries.
Over the long haul ACOEM will need to revise current treatment guidelines. Perhaps the ACOEM of yesteryear won't be the ACOEM of tomorrow.
(you can subscribe to the blog by clicking on the RSS reader buttons on the right corner column under "Most Recent Entries")]]>TOP 10 DEVELOPMENTS IN CALIFORNIA WORKERS' COMP JAN. 08-APRIL O8
http://www.workerscompzone.com/index.php?entry=entry080503-213211
In many ways, it's been a sleepy start in 2008.
There's been a lull in definitive court rulings on workers' comp issues, and legislative activity has been low profile for the most part.
The year has been notable for several things that haven't happened.
Let's recap a handful of them. New QME regs are still in the comment phase and have not been finalized. The DWC has not revised the permanent disability rating schedule despite earlier statements it would be doing so. Important issues have not been resolved by the WCAB, including issues as to how to apportion old schedule ratings from AMA ratings. The WCAB has not ruled on the Scott Boughner case, a trial level decision challenging the validity of the 2005 rating schedule. And further court decisions clairifying the required methodology for DFEC testimony under the Costa case have not been forthcoming.
Here's my subjective list of the most important developments in California workers' comp for the first third of 2008, listed in no particular order:
1. The Governor reappointed two members to the WCAB (James Cuneo and Frank Brass), fills one other slot (Deirdre Lowe), but did not yet act to fill the other vacant slot.
2. Several appellate decisions held that the old (pre-2005) rating system applied where there was an indication of permanent disability even if the worker was not permanent and stationary pre-1/1/05. These cases rejected the holding of the 4th Appellate District in Vera v. WCAB (2007) that under Labor Code 4660(d) a worker's condition had to be permanent and stationary before 1/1/05 for the old schedule to apply. The leading decision was Genlyte Group, LLC v. WCAB (Zavala) from the 2nd District Court of Appeals. Courts following Genlyte (Zavala) included the 1st Appellate District (in Tenet/Doctors Medical Center v. WCAB (Reddrick)). With a conflict among appellate courts, it's possible that the California Supreme Court will ultimately hear the case. But for now, the weight of authority seems to be against Vera.
3. The 1st District Court of Appeals agreed to hear arguments in a constitutional challenge to the 24 visit cap on chiropractic care and physical therapy enacted in 2003. Arguments are scheduled for May.
4. The DWC continued its work on the EAMS paperless system. DWC representatives assured system stakeholders that the project is basically on track. Physicians and lien claimants expressed great misgivings over whether the system would have EDEX-like features to enable them to track case status. Legislative oversight hearings were held. There was varying concern over the number of users who may be able to access the system simultaneously. At April's end it appeared that the system will have an August "go-live" date for the WCAB itself. Rollout to "external users" will be later.
5.Benson, Benson, and more Benson. The December 2007 case Diane Benson vs. The Permanente Medical Group continued to roil the comp community. In Benson the WCAB ruled that under the 2004 comp reform law, the decades old Wilkinson case no longer requires that successive injuries to the same body part be rated together. As of late April 2008 Benson has been appealed (and briefed by many key comp stakeholders)but a writ not granted by the time of this post. Meanwhile, the apparent change in the law and the demise of Wilkinson has caused counsel for applicants and defendants to re-analyze many files, in some cases making for drastic change in case values. Also notable at the board level:The WCAB rejected arguments for an estoppel-based extension of TD beyond the 104 week limit. In the case, Daniel Ramos v. Frito Lay & Sedgwick Management Claims, the trial judge ruled that under equitable estoppel principles, delays in providing surgery extended the worker's eligibility for temporary disability beyond 104 weeks from the date of commencement. The WCAB reversed, and a petition for writ is pending as of the date of this post.
6. The California 3rd District Court of Appeal ruled in Foster v WCAB (Zurich American) that a worker disabled as a result of two successive injuries (which both contributed to the need for temporary disability) could draw only 104 weeks of TD, not 208 weeks. The decision is viewable here: http://www.courtinfo.ca.gov/opinions/do ... 114651.PDF
7. Legislative activity at the capitol in Sacramento began. Among the bills progressing were the following: SB 1115 (Migden) (prohibiting discrimination in apportionment) SB 1189 (Cedillo) (accelerating provision of retraining voucher) SB 1145 (Machado) (revising governance of SCIF) AB 1874 (Coto) (dealing with issues related to SCIF) SB 1717 (Perata) (to increase permanent disability benefits) (the Perata PD benefit bill is here: http://www.leginfo.ca.gov/pub/07-08/bil ... _comm.html A bill to regulate workers' comp rates (AB 2692 by Ed Hernandez) appears to have died as of April 2008.
8. The California Court of Appeal upheld a verdict in favor of Palm Medical Group against SCIF for $1.31 million. SCIF had refused to include Palm Medical in its medical network. The theory of the case was the "fair procedure doctrine". Since SCIF's market share has fallen over the last few years from the 50% to 20% range, a medical provider today might have more trouble establishing an unfair exclusion case. On the other hand, the court noted that an inability to compete for patients in 16% to 31% of the market might be significant. This decision may make carriers and employers think twice before excluding providers from networks. The pdf opinion can be downloaded here: http://www.courtinfo.ca.gov/opinions/do ... 114651.PDF
9. CIGA (the California Insurance Guarantee Association) came under more scrutiny. A hearing was held in March 2008 at the California Senate Banking, Finance and Insurance Committee over allegations that CIGA overpaid in sweetheart deals for services in instances where its third party administrators had relationships with certain vendors. As of the date of this post it appears that if there is any additional action on the issue, it could come from the Department of Insurance, which was said to be doing its own research on the issue.
10.The Workers Compensation Insurance rating Bureau (WCIRB) released an analysis of loss adjustment expense trends (known as "allocated loss adjustment expense" or "ALAE" and "unallocated loss adjustment expense" of "ULAE"). These expenses are essentially the insurer overhead. ALAE are the costs associated with handling claims that can be directly allocated to a particular claim (for example, investigation costs, defense attorney fees, copy service costs and the like). ULAE are the costs of handling claims that can't be directly allocated to a particular claim, i.e. more general insurer overhead items. Bottom line of the study? Benefits paid out to workers by California comp carriers are way down because of comp reform. But insurer overhead is significantly increased as a percentage of calendar year losses. This is an important report, and you can find it at www.wcirbonline.org More on the implications of this study in future posts.
That's my Top 10.
In addititon, there were think-tank studies, and more studies. These included the following: -the February 2008 CHSWC report on California Occupational Health and Safety Programs, which you can find here: http://www.dir.ca.gov/CHSWC/reports/CHS ... althsafety
Julius Young www.boxerlaw.com (you can subscribe to the blog by clicking on the RSS reader button on the right column under "Most Recent Entries")
]]>JESSE CHAVEZ VS. BRINKS, INC AND LIBERTY MUTUAL
http://www.workerscompzone.com/index.php?entry=entry080501-221741
Suppose an insurer has a valid medical network (MPN). The MPN met all the notice requirements and technical MPN access standards.In our hypothetical the worker had not, before his work injury, predesignated in writing a doctor to treat in the event he was injured.
Can such a worker escape the MPN by treating with a doctor of his own choice?
Apparently yes. Labor Code 4605 says "Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting physician or any attending physicians whom he desires."
That's just what was done by the worker in the recent case of Jesse Chavez vs. Brinks, Inc and Liberty Mutual (LBO 389599). In a WCAB panel decision issued April 21, 2008, the WCAB reversed a decision of the workers' comp trial judge that had found the worker was entitled to treatment only through the MPN.
The WCAB panel ordered that "applicant is entitled to medical treatment from defendant, Liberty Mutual Insurance Company, only through the Medical Provider Network."
Bottom line? Chavez could treat with a doctor outside the network, but he'd have to pay for the treatment himself. The case doesn't deal with further ramifications of such treatment. such as whether TD would be due if the non-MPN doctor certified TTD status.
Will this decision open the floodgates for "treatment on a lien"? After all,that practice was a staple of the Wild, Wild West days of comp in the 1990s before the the SB 899 reform.
Not likely.
The decision does not stand for the proposition that Chavez could decline MPN treatment and self-procure treatment on a lien reimburseable by the defendant. After all, Labor Code 4605 refers to "at his own expense".
But if the insurer is not liable for payment, who is liable?
The WCAB panel in Chavez didn't reach this issue. Interestingly, though, in his recommendation in response to applicant's petition for reconsideration, Workers' Compensation Judge Charles C. Ringwalt raised questions as to whether the applicant would be liable to pay. Ringwalt cited Labor Code 3751(b) in questioning whether the doctor outside the MPN can collect from the applicant.
Labor Code 3751 (b) says: "If an employee has filed a claim form pursuant to Section 5401, a provider of medical services shall not, with actual knowledge that a claim is pending, collect money directly from the employee for services to cure or relieve the effects of the injury for which the claim form was filed, unless the medical provider has received written notice that liability for the injury has been rejected by the employer and the medical provider has provided a copy of this notice to the employee. Any medical provider who violates this subdivision shall be liable for three times the amount unlawfully collected, plus reasonable attorney's fees and costs."
Thus, if liability for the injury has been accepted, it would appear the doc can't bill the worker. Could it be that the doctor gets stiffed?
But even if liability for an injury is accepted in a general sense, what if there are disputes about particular treatments (under ACOEM and UR, for example) or disputes about what body parts are involved in the injury? There would seem in such instances to be "non accceptance" of liability for injury, allowing the doctor to bill the worker (or pursue a lien). The panel in Jesse Chavez vs. Brinks didn't deal with these nuances, and further cases may establish the rules on this more definitively.
Many workers will get substitute or parallel treatment from group medical providers (if they have insurance) or public facilities (if they are uninsured).
But self-funding treatment?
Paying for your own treatment isn't a viable financial option for most workers. But for highly paid workers, it might make sense, particularly those workers who are experiencing difficulty with their employers on return to work or reasonable accomodation issues. Still, it's not likely to be a great strategy for boosting PD ratings (since the 4060/4061/4062 process controls).
Stay tuned.
Julius Young www.boxerlaw.com (you can subscribe to the blog by clicking on the RSS reader button on the lower right scrollbar under "Most recent entries")
]]> THE CAMEL CITY
http://www.workerscompzone.com/index.php?entry=entry080429-222750
My Camel City was where they made Salems. And Winstons.
My alma mater is R. J. Reynolds High. The Demon Deacons.
It was a town nurtured by tobacco magnates, textile barons (the Hanes), trucking empires (Malcolm McLean, father of containerized shipping, from truck to rail to sea), and the banking and insurance industries. Wachovia was born there.
There was no arugula in town, and only one Chinese restaurant. But it was not a joe-sixpack kind of town, either. I didn't know a thing about unions. There were few. North Carolina has always been a tough place for unions.
Wake Forest University came later, when I was a kid. Like a cake being baked from scratch, it was plopped down into part of the old Reynolds estate just several minutes from my house.
I would go on later to UNC-Chapel Hill law school. Michael Jordan was shooting hoops there at the time, and John Edwards was in the class behind me.
If you'd have told me then that I would be sitting here years later looking at the Golden Gate bridge writing a workers' comp blog, I would have fainted.
Life is funny like that. We meet people along the way that influence us. We have mentors.
I had mine in comp. People like Sacramento's Gene Treaster. My partners Stewart Boxer and Mike Gerson.
People who gave advice, but who primarily led by example. People who were willing to make that extra client call even if it meant they were the only one left to cut off the lights on the way out the office door.
So it was with interest that I saw Barak Obama spending today in Winston-Salem on a day which could prove definitive for his campaign. Needing and trying to differentiate himself there in the Camel City from Rev. Wright, a man who had obviously mentored him in many ways.
Maureen Dowd analogizes it to the classic Greek stories-warrior must slay the monsters and eventually deal with his own father figure in order to claim the throne. It'll be interesting to see how that plays out.
Perhaps its far afield from the issues usually raised in this space.
But if you're reading this as a workers comp professional-ye lawyers, examiners, brokers and doctors who read this space- take a moment to think. Who mentored you in comp? How did you get here in the first place? And how did you claim your own rightful role?
]]>I HATE HIGHWAY 238
http://www.workerscompzone.com/index.php?entry=entry080428-225411
Mine does. Here in Alameda County we have Highway 238, a snarled two lane connector joining multiple four lane freeways that link the Bay Area to inland cities.
Over the years I've wasted hours sitting on this stinker or sitting in traffic creeping towards it.
Will the DWC paperless project known as EAMS have its own Highway to Hell?
Today's workcompcentral.com piece by senior editor Jim Sams focuses on a problem likely to plague the EAMS project, the limited amount of "user licenses". It's a subject I've mentioned in several prior posts.
But kudos to workcompcentral for digging deeper on this. Workcompcentral has filed a Public Records Act request for documents pertaining to the EAMS project. Some of the documents have been released and apparently some are still being withheld (note: I'll cover the story further if these are released and appear significant). I applaud workcompcentral's efforts to get the back story on what's really gone into the planning of this project.
Don't get me wrong. EAMS is necessary, and a promising project.
But EAMS may be like Highway 238. Only a limited number of folks can access it at any time. Currrently the DWC has only 2500 "user licenses". Expanding the number of user licenses will be expensive-at a time when the state is in debt to the tune of billions.
Workcompcentral quotes DWC spokesperson Susan Gard as noting that the licenses are like parking spaces at a mall. More than one person can be accomodated, but not at the same time.
The comp system is huge, and there are thousands of attorneys, insurance adjusters and lien claimants. 2,500 parking spaces is a recipe for guaranteed gridlock. Unless addressed, this will threaten the credibility of the project.
On another note: hats off to Dale Debber, wunderkind behind the Workers Comp Executive. Dale was the first to break last week's story about soundings being taken in the Capitol about a sale of SCIF. That's very unlikely to happen, but it's good to know there's a canary in the cage somewhere.
Julius Young http://www.boxerlaw.com/news.html]]>SCIF FOR SALE?
http://www.workerscompzone.com/index.php?entry=entry080423-230731
SCIF is the California's largest workers' comp insurer. A quasi-public insurer, SCIF just a few years ago had around half of the market share for comp in the state. That market share is probably down to the 20% range now.
Rumors are circulating that there are proposals in Sacramento for SCIF to be sold as a budget balancing move.
How this could be achieved isn't clear. But privatizing the fund could bring big bucks to a state that is facing a growing budget deficit that may already exceed $14 billion.
SCIF has a peculiar important role to play in California's insurance marketplace. It's the insurer of last resort, meaning that it underwrrites coverage on many businesses that can't get coverage elsewhere, including many small businesses. If it were to be sold there would have to be some mechanism to guarantee coverage for employers who need it.
I'd be wary of politicians getting their hands on SCIF. For one thing, California must eventually look for permanent solutions to structural deficits, not gimmicks such as this. Sell SCIF rather than bring back the car tax? Not a good idea.
In the long run the fund has an important role to play. There may be future times when its market share will need to increase again.After all, the spike in market share several years ago was a response to instability in the private marketplace and insolvency of other carriers.
Competition between a quasi-public carrier and private insurers is probably a healthy thing.
Legislation under consideration will help provide better oversight of the fund. Let's not throw out the baby with the bathwater. Be very concerned if SCIF goes on the auction block.
Stay tuned.
Julius Young www.boxerlaw.com (you can subscribe to the blog by clicking on the button below the "most recent entries" on the righthand column) column on the ]]>NOT JUST IN THE ABSTRACT
http://www.workerscompzone.com/index.php?entry=entry080421-005146
As sure as the swallows return to San Capistrano, you can be sure that entrenched California business interests will issue press releases attacking the PD increase bill. Ultimately, the opposition's premise is that SB 899 "is working" and that comp costs have been lowered, providing a boost to the state's economy.
Of course, there is some truth to that, in that comp premiums have fallen, though carrier profits remain at high historical levels.
They'll also argue that any change is "premature" and that further study is needed. And they'll probably argue that change should be made via administrative regulations (as the DWC has promised, but not delivered), rather than legislatively. That's an argument they might not be making if there was a Democratic governor in the statehouse.
But before the blizzard of arguments on the cost of a PD increase, let's get real. Too often in comp the workers are lost in studies that fail to recognize the plight of individuals. So lets look at some examples of actual workers rather than statistics. Where to start? Check out this website: http://www.denialofcare.org/horrorphotos.htm
These are disabled worker "horror stories" collected by attorneys for injured workers.
Even if one were to assume that a handful of these stories are slanted, discountable or somehow inaccurate, the sheer number of these stories is troubling. These stories put a face on the notion that the system appears to compensate permanent disabilities in an inadequate fashion. I suspect that intellectually honest representatives for employers would-in their heart of hearts-recongize the inadequacy of benefits for these particular workers.
So-a challenge to the enlightened employers (and insurers) in the employer community. What's an intellectually honest response to the inadequacy of benefits? Yes, we know that you believe (and may have been correct to some degree) that the system was out of control and had to be tamed. Tell us something we don't know.
Are workers such as these pictured as "horror stories" simply casualties of reforms for the "greater good" of salvaging the state's economy? Should there be some effort to balance the needs of such individuals with the need for the state's economy to remain competitive? To employers:read the horror stories, look at the pictures and then answer this. Are you comfortable with a system which compensates some of your workers in this fashion, knowing that less than half of insurance premiums are going to payouts for injured worker benefits? I recognize that in many quarters altruism is seen as naive and old fashioned. But I'll still ask the questions.
A day will come under a different governor when these arguments will receive a more comprehensive sounding. Employers: is it time to start thinking about what a response might be? Saying no forever will not be an answer.
Stay tuned.
I was in Tokyo last week. I shot some video of workers there that I'll be uploading soon for your enjoymenrt. Still coming is the 1st quarter 2008 California workers' comp recap.
]]>WEEK'S WRAP UP
http://www.workerscompzone.com/index.php?entry=entry080418-084237
State Senate Pro Tem Don Perata is unveiling his proposed PD increase bill in the next few days. That'll be the third try in 3 years. Guv Schwarzenegger has twice vetoed bills passed by the legislature to increase permanent disability benefits. In many categories, California now has some of the lowest benefits for permanently disabled workers.
But an effective employer-insurer coalition has the Governor's ear, and it's unlikely that the third time will be a charm unless the bill can be part of a trade for other things the Governor wants. But it's an unusual time in Sacramento as both Governor and legislature face decisions over massive budget cuts to bring the state's budget into balance.
Also significant this week was the apparent fizzle of a comp rate regulation bill sponsored by Assemblyman Ed Hernandez. The applicant attorneys I know are divided on comp rate regulation. Some wistfully recall the days in the 80s and 90s when insurance carriers joined forces with labor and applicant attorneys to achieve legislative victories. Others recognize that without increased regulatory focus on the insurance industry the current situation could continue indefinitely......a system in which benefits to disabled workers are dwarfed by insurance overhead and profit.
In the courts, the 3rd District Court of Appeal rendered a significant decision in Foster v. WCAB. In Foster the worker had 2 successive injuries, both of which contributed to the need for temporary disability benefits. The worker argued that this entitled him to 2 periods of 104 weeks of TD. The court disagreed, holding he was entitled only to 104 weeks. You can see the decision by clicking here: http://www.courtinfo.ca.gov/opinions/do ... 056820.PDF
I've been experimenting with introducing video to this site. Stay tuned.
Julius Young www.boxerlaw.com (you can subscribe via RSS buttons on the lower right hand corner buttons under "most recent entries")