The Director of California's Department of Industrial Relations, John Duncan, gave a headliner address in Los Angeles and Oakland recently at the Division of Workers' Compensation 17th annual conference.

Duncan's comments are an important indicator of the remaining agenda for the Schwarzenegger administration in workers' comp.

Duncan has recently been under fire from key legislative Democrats, who demanded a response on the decision to flout the statutory mandate to amend the PDRS effective January 1. 2010:
http://www.workerscompzone.com/index.ph ... 205-222206

In 2009 I did a piece, "Dear John", a fantasy pen-pal letter to Duncan, responding to his sudden appearance in the limelight on comp issues after the Almaraz I/Guzman I decisions:
http://www.workerscompzone.com/index.ph ... 403-214931

Today, workerscompzone readers can savor a followup pen-pal piece......

Dear John:

How's it goin'?.

I was able to catch your speech in Oakland at the DWC conference last week.

First, it was good to know we have something in common. I also like wearing Lacoste shirts. We're both preppy. Gotta love that crocodile! And to think some folks call it an alligator shirt....Harrumph...

Anywho, it was fascinating to hear that story about how you were in your Lacoste on the beach (was it Malibu?) when you got the call during the recall era to brief Arnold on workers' comp issues. My fantasy is that you were sitting there under a cabana drinking a Pimm's Cup when you got that call from Arnold's people.

I love a glass of Pimm's Cup on the patio, don't you? Even the little sliced cucumbers they give you to stir with...

And who knew the Guv dressed so casually?

But back to your speech at the DWC conference.

Glad to hear that the DWC is working with the external users group to simplify EAMS. That's gotta have been a big heartache for you the last couple of years. You heard mostly complaints from the comp community and the EAMS has been a budget buster.

Your comment that workers' comp is an "essential lubricant" in state's economic picture had me briefly thinking of AstroGlide. But lets not go there.

Your comp stats were impressive. The average cost of workers' comp cut by half. Over $50 billion in savings for California employers. You "wouldn't want to imagine" today's California economy without the savings due to the reforms.

Some folks might want to rehash old arguments about why pre-reform comp costs where rising so much after the millennium, or why insurers were allowed to reap such huge profits in the early post-reform years. Re-exploring all that is a non-starter now. I know that and you know I know that.

I gotta applaud many of the efforts you're now taking to control rising medical treatment costs. Out of control treatment costs will kill the system. If treatment costs grow too rapidly there's little room for benefit increases for disabled workers.

So you've got your 12 point plan. Reducing HCO barriers. Simplifying MPN notice regs. E-billing. Revising PR-2 and PR-4 forms and streamlining authorization requests. Surgery center fee schedules.
Dealing with hardware reimbursement formulas. WCIS regs. Pharmacy network regs. UR regulation simplification. RBRVS fee reimbursements.
A drug formulary. Efforts to address liens which are choking the system.
Making medical treatment guidelines more comprehensive (as you said, the treatment guidelines are "a living document").

Wow. Makes me tired just listing it all. I've got to hand it to you. Looks like you won't be turning off the lights until January 2011.

I'd love to see an independent assessment of how all those changes fit together from both a cost standpoint and a quality of care standpoint.
Devil's always in the details.

What took you so long to focus on medical costs?

Maybe it was my vinegar-laced salad dressing, but hearing that "nearly 12% of California employers are uninsured" seemed like a throwaway line.

I love seeing the occasional labor standards investigator busts, but where's the leadership on really cracking down on the large number of scofflaw employers?

Where's some of that good ole-time preppy passion? I missed that part.

What I found most interesting in your talk was your vision of the comp system generally. You referenced the "social contract" where workers injured on the job gave up their right to sue in exchange for the guaranteed benefits under the comp system.

On the one hand you referenced keeping the "compensation bargain".
And you used the term"adequate benefits".

But it's clear you don't want a system which focuses on the individual impacts. In your view efforts to identify an appropriate result on a case by case basis basis are "doomed to failure". You want cases determined on a basis that is "objectively verifiable" and "reproducible".

That must have charmed your lunch partners, the commissioners of the WCAB.

I can't help thinking that many disabled workers don't get the concept that they are subject to a cookie cutter dispensation and then told to "move on". Where's the "adequacy" and the fulfilled "compensation bargain" in that?

Try telling a union worker who just lost his good job to "move on" after he loses the job because of work restrictions but is awarded "zero impairment".

That worker might come rip the crocodile off the canary colored Polo shirt of anyone who told him to "move on".

But I realize you are not alone. There are many stakeholders-and some consultants to labor and CHSWC-who really want a cookie cutter system. Your presentation merely laid out the case in a stark fashion.

You referenced that a prior tentative PDRS revision would have increased benefits by 16% and that the DWC is prepared to use more current data in a future revision. Bravo.

But you claim there's too much uncertainty to so so now, so you will not amend the PDRS now. "California employers are hurting and can not absorb more costs".

So it was John Duncan, defiant.

Looking back, you are the Wilsonian legacy. You've been in key positions at DIR for most of the last 20 years and have headed the department under 2 governors.

I can keep a secret. Will you morph into a key role in the Whitman brain trust?

Your credibility might be higher in many quarters if you had shown some personal advocacy for the benefits of disabled workers whose benefits were slashed after the reforms. Granted, their situation is not your total portfolio, but it is in there. The problems at Cal-OSHA compound that perception.

But you're a good and able soldier for business interests. As we say in my homeland, the South, it's just "bidness". "Bidness" creates jobs.

I thought I'd take the time to add to your mailbag. The DWC presentation made interesting political theater. John Duncan defiant.....

Ciao
Your neighbor by the Bay

Julius Young
www.boxerlaw.com

If Congressional Democrats had the votes to pass the Senate-approved healthcare reform version through the House, they probably would have scheduled a vote yesterday.

But how close are they to really having those votes? Much of the punditry on this is based on the political spin machines. None of the analyses I've seen have actually looked at the details of vote counting.

Nancy Pelosi and her lieutenants are busy trying to tamp down concerns over abortion funding language and political concerns of members running for re-election.

Some of those House Democrats may decide to take a page from the Arkansas's Blanche Lincoln playbook. Trailing badly to GOP challengers in the polls for her U.S. Senate seat and facing a primary challenge from a progressive and labor supported Lt. Governor, Lincoln now touts her no votes on most of the Obama agenda. Lincoln has unveiled an ad showing her as a voice of reason in a class of kindergarteners pictured throwing paper money around the room.

Adopting a strategy of an incumbent running against Washington may turn out to be clever.

For the political junkies out there, here's a fascinating analysis by blogger/political analyst Jay Cost. Cost does the gritty homework to analyze the status of the swing House votes that will determine whether the bill gets enacted, bringing healthcare coverage to millions of Americans.

Here's the piece by Jay Cost:
http://www.realclearpolitics.com/horser ... se_de.html

Everything is fluid, but Cost currently tallies the votes as follows:

Democrats who voted nay in November:
Very Hard to persuade: 25
Hard to persuade: 6
Persuadable: 6

Democrats who voted yea in November:
May vote nay now: 11
Other possible nays: 12

Stay tuned. I have posts coming on DIR Director John Duncan's speech at the DWC conference and on the recent CHSWC meeting.

Julius Young
www.boxerlaw.com

On our weekends many of us in the "comp community" try to dig out from the mountain of e mails, reports and records that come our way.

Just in case you've already done your homework, filled out your Oscars scorecard, and finished that glass of two buck Chuck, workerscompzone has a time filler for you.

Why not take a look at the DWC rulemaking efforts now under way?

MPN, employee information and DWC1 and notice of potential eligibility regs are in their 1st 15 day comment period. Comments are due March 17, 2010:
http://www.dir.ca.gov/dwc/DWCPropRegs/M ... ations.htm

Electronic medical billing regs have been unveiled, and public hearings are scheduled for April 23, 2010 in Oakland and April 26, 2010 in Los Angeles. If you are a provider, this will be of great interest:
http://www.dir.ca.gov/dwc/DWCPropRegs/E ... ations.htm

Stay tuned.

Julius Young
www.boxerlaw.com

Some interesting statistics surfaced in the presentation on the QME process at this week's DWC conference.

While the Medical Unit is getting QME panel requests issued in less than a month for unrepresented workers, panels in represented worker cases are currently not issued until around 90 days from request.

Labor Code 139.2(h)(1) requires unrepresented panel requests be issued within 15 business days of receipt by the DWC Medical Unit. For represented worker panels there is no statutory timeframe but the Medical Unit has previously indicated a goal of processing those within 30 working days.

Suzanne Honor-Vangerov, manager of the DWC's Medical Unit, gave a presentation on the workload of the Medical Unit. Each month 6,600 panel requests are filled. The breakdown is as follows:
Unrepresented cases: 4,700
Represented cases: 4,100
Ordered by judges: 100
Replacement panels: 550

Honor painted a picture of a unit besieged by a huge volume of paper
(the Medical Unit is not on EAMS) that is also coping with the effects of furloughs. Apparently some Medical Unit personnel have been off on Friday furloughs but come in on Saturdays. Eventually they'll have leave time as a result.

The boxes of backlogged requests may multiply.

The situation is complicated by procedures and forms which result in many requests being kicked back. That occurs for a variety of reasons where forms are not filled out properly, supporting documentation is not attached, there is a conflict between the data in the form and the underlying documentation etc etc. Ms. Honor and DWC Legal Unit staff counsel Suzanne Marria did an admirable job of detailing the types of errors that can delay processing of requests in represented and unrepresented cases.

It's hard to fault the DWC staff, who are trying to keep the QME system flowing. One does wonder if there aren't steps that could be made to streamline the process.

What was most disturbing was word that requests for panels for workers represented by attorneys is taking 90 days. And if the request is kicked back for clarification from one or both of the parties, the wait could be much longer.

Having such a processing time differential between represented and unrepresented cases is troubling.

Yes, if there are long delays it may encourage adjusters, defense attorneys and applicant attorneys to agree on AMEs.

There are many cases where it's in the interest of the insurance carrier to get a speedy resolution. If there are disputes over TTD status or over treatment issues, employers and insurers may be prejudiced by having to wait many months for a panel to be issued. In some cases a panel is issued and there are problems with one or more of the panel docs, necessitating a replacement panel.

So if there are delays in the QME process it may give more incentive to parties to use AMEs. With AMEs in a represented case the parties have more control over scheduling. If an AME is scheduling too far out in time the parties can agree to someone else. I suspect there are many adjusters and claims managers who would be more willing to consider use of an AME if they understood the delays at the Medical Unit.

The problem is in represented cases where the parties cannot or will not agree to an AME. A wait of 90 days-or more-to even get the QME process rolling is prejudicial to many workers and to many employers.

A 90 day wait-or more-is hardly a hallmark of an expeditious, unencumbered system.

Under these circumstances I believe that many attorneys will start getting orders from a workers comp judge directing the Medical Unit to issue a panel promptly. If the unit is too swamped to comply expeditiously (some of these orders may require Medical Unit compliance in a designated timeframe) judges may allow the defense attorney and applicant attorney to bypass the process altogether. Ultimately the WCAB has jurisdiction on what medical evidence it will allow, particularly if the parties stipulate to the admissibility of evidence.

Either the DWC needs to devote more staff resources to the unit or the
QME request procedures need to be revamped.

With the Schwarzenegger-appointed DWC administration headed towards its final hurrah, it's not clear this is a priority. But this DWC administration or the next needs to address these problems, which may only grow worse.

Julius Young
www.boxerlaw.com

We're getting past the era of Cheech and Chong getting stoned in the back room.

Statewide Insurance Services, based in Rancho Cordova, has announced nationally based insurance coverage written specifically for the medical marijuana industry.

Apparently the coverage will cater to pot growers and dispensaries. An official of Statewide Insurance Services, Mike Aberle, is quoted in today's Sacramento Bee as saying it covers "all aspects of the industry", including workers' compensation.

I don't have any details yet, but it's interesting to note such industry-specific coverage.

If they are writing workers' comp, perhaps they'll also offer medical marijuana dispensaries as part of their MPN. Perhaps they'll have medical marijuana on their formulary to be prescribed by treating physicians.

Is this the vanguard that will eventually get marijuana accepted as a treatment modality under California's MTUS?

Inquiring minds want to know.

Meanwhile, there's growing focus on the involvement of the Mexican mafia in large scale pot growing operations on public lands such as areas near Yosemite and in Sequoia National Forest. Here's a piece from the Los Angeles Daily News, "Drug Gangs taking Over U.S. Public Lands" by Alicia A. Caldwell and Manuel Valdes:
http://www.dailynews.com/breakingnews/ci_14495133

Stay tuned, and don't inhale too much.

Julius Young
www.boxerlaw.com