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, October 27, 2013, 10:47 AM - Understanding the CA WC systemOne of the larger questions surrounding the 2012 SB 863 California workers' comp reforms is how "catastrophic" will be interpreted.
Labor Code 4660.1(c) was added to prevent permanent disability ratings for psychiatric disability (and sleep and sexual dysfunction) for post 1/1/2013 cases "arising out of a physical injury". This would encompass so called "physical-mental" injuries though it does not address so called "mental-mental" injuries that are based on harassment or cumulative employment non-physical events.
But Labor Code 4660.1(c) has exceptions.
One is where the compensable psyche injury occurred as a result of a "violent act" or "direct exposure to a significant violent act within the meaning of Section 3208.3".
The other exception is for "a catastrophic injury, including, but not limited to, loss of limb, paralysis, severe burn, or severe head injury".
In enacting SB 863, the legislature did not define catastrophic. Did they mean that the injury itself must occur in some dramatic, spectacular fashion? Head-on collisions, burning buildings, falls from scaffolds and the like?
One problem with this analysis is that it is not hard to find easy exceptions to that analysis. A worker might twist in the wrong fashion in picking up a heavy box, herniate a disc, and become paralyzed. A diabetic welder might inadvertently burn a small piece of flesh which then becomes infected, causing a loss of limb. A construction laborer might trip over an uneven piece of ground, falling and hitting his skull with a resultant severe head injury.
These are not workers who are injured in a fashion that makes it to the 11 o'clock news. In fact, their mechanism of injury is relatively undramatic.
But the injury for them is catastrophic.
Some employer advocates will argue that the courts will be able to sort this out. After all, that is what courts do, right? In his opinion in an obscenity case, Jacobellis V. Ohio, Justice Potter Stewart noted that he could not intelligibly define hard-core pornography, "but I know it when I see it".
In California workers' comp, the WCAB and the appellate courts have been forced to determine whether various injury mechanisms constituted "sudden and extraordinary events of employment" for purposes of Labor Code 3208.4(e)(1).
But sorting out "sudden and extraordinary" may be easier than trying to decide whether a fall from a step stool versus a ladder versus a scaffold is or is not catastrophic.
A better approach would be to focus on the effect of the injury. Granted, the intent of the SB 863 reforms was clearly to place some limits on psyche claims, so if every injury is "catastrophic" then the code would have litle meaning.
In an attempt to give structure to this debate, a task force of doctors from the California Society of Industrial Medicine (CSIMS) have proposed a framework for clinically defining "catastrophic".
The CSIMS analysis can be seen here:
CSIMS identified 12 factors that can medically contribute to a catastrophic injury, 5 of which relate to the mechanism of injury and 7 of which relate to the effects of the injury.
The CSIMS task force proposes that if the mechanism of injury was not one of those enumerated in the statute or "of equal medical significance", that catastrophic be defined by whether the worker's injury resulted in a variety of weighted factors on a proposed point scale.
Such factors would include:
-extended period of temporary disability
-repeated hospitalizations, surgeries or required use of assistive devices
-bankruptcy, divorce or loss of home related in whole or part to the injury
-work-injury caused cognitive deficits
-chronic pain requiring intrathecal pump, narcotic dependence etc
-serious mental illness
-eligibility for Social Security Disability as result of injury condition
A worker whose mechanism of injury was not "catastrophic" would need four of these factors to qualify for rating permanent disability for a "physical-mental" injury.
One might debate whether so many of these factors should be required, since it is arguable that even one of these factors may be a catastrophic effect for an individual worker and their family.
It would seem that a worker who has repeated surgeries and loses his home or family as a result would have sustained a personal catastrophe though the worker might only meet two criteria proposed. I'd argue that the CSIMS criteria are overly stringent if catastrophic refers to the effect of an injury rather than the mechanism of it.
But kudos to CSIMS for providing a discussion framework for determination of what is "catastrophic" if the courts allow a definition of catastrophic that blends the mechanism of injury with the effect of the injury.
It is possible that the ultimate determination of this issue will play out in the appellate courts on more traditional lines regarding legislative intent and statutory interpretation rules. In the meanwhile, CSIMS provides a practical approach which could be referenced by workers' comp judges as they hear these cases.
Sunday, June 16, 2013, 10:26 AM - Understanding the CA WC systemThe California Commission of Health, Safety and Workers' Compensation held its first 2013 meeting this past Thursday. Here's a thumbnail sketch of some of the more interesting tidbits discussed:
Christine Baker, Director of the California Department of Industrial Relations, stated that the DIR is thriving despite resource limitations.
She noted that the DWC is examining ways to reduce the backlog in assigning QMEs. Baker noted that using "overtime" to reduce the backlog is a short term fix and that there needs to be regulatory and technological fixes, though she also referenced redirecting staff resources. Baker noted they are reviewing methods of assigning QMEs. Reference was made to possible development of an online QME request portal.
Baker did not mention it, but the DWC has issued a June 11, 2013 newline on the details for seeking QME panels:
http://www.dir.ca.gov/dwc/dwc_newslines ... f#zoom=100
Baker also spoke about the $120 million fund created under the SB 863 .
Labor Code 139.48 was amended to create the fund "for the purpose of making supplemental payments to workers whose permanent disability benefits are disproportionately low in comparison to their earnings loss".
That section specifies that "Eligibility for payments and the amount of payments shall be determined by regulations adopted by the director, based on findings from studies conducted by the director in consultation with the Commission on Health and Safety and Workers' Compensation".
Baker, who is fond of using the term "data driven", noted that RAND has been doing a study on wage losses of approximately 19,000 workers. The study is said to be almost ready and is currently in RAND's internal quality control review process. Baker promised that the study would be posted on the DWC website soon and that there would be ample opportunity for comment by the public and CHSWC.
That's good, because there are many questions and concerns about how the annual $120 million fund should be distributed.
As former executive officer of CHSWC, Baker relied heavily on RAND studies.
So it's likely that whatever methodology RAND has developed will be key in the development of the criteria for the $120 fund.
It was not clear from Baker's presentation whether CHSWC staff has been heavily involved in designing whatever methodology RAND plans to propose, or to what extent various stakeholder groups have already been involved in that planning process.
On the topic of liens she noted that the DWC had collected some $11 million in lien filing and activation fees. A year end lien filing rush may occur in late 2013, but she noted that lien filings are down from 45,000 a month to around 2,000 per month.
Baker noted that reform of the physician payment schedule is coming, based on RBRVS codes. The fee schedule has not been updated in years.
DWC Acting Administrative Director Destie Overpeck noted that regulatory reforms already are projected to save $62 million (ambulatory surgery center regs) and $64 million (spinal hardware payment changes) respectively.
Overpeck noted that a number of final regulations are near adoption, including regs on supplemental displacement job benefits (vouchers), QMEs and interpreters.The DWC has asked for readoption of emergency IMR (Independent Medical Review) and IBR (Independent Bill Review) regs, so those final regs will come later. She noted that MPN and RBRVS and predesignation regs are being worked on. For home health care and interpreter fees, the DWC has commissioned studies which are under way.
Audit regs will be updated.
In sum, Overpeck noted that the DWC is "really busy".
Dr. Rupali Das, executive medical director of the DWC, spoke about IMR. Das noted that there have been 637 IMR requests to date. Not all of those have yet come to decision, but Das noted that of the decisions to date, 34% overturned the utilization review denial of treatment and 66% upheld the denial of care.
Das noted that is a lower rate of treatment approval than for IMR in California group health, where figures over a decade have shown that treatment denials were overturned 54% of the time.
Das noted that some treatment denials are being posted online (after being redacted). According to Das, this is "for transparency" and "as a learning experience". A link to that section of the DIR website can be found here:
Opioid medical guidelines may be addressed, according to Das.
CHSWC acting executive officer Lachlan Taylor noted that the RAND study on wage loss is expected in July. A study on copy service costs is expected soon. Interpreter fee study and home healthcare studies are also being performed.
Taylor noted that he would like to begin the process of evaluating the effects of medical reforms. His suggestion that the CHSWC members approve an RFP for a study on that passed by unanimous voice vote.
Also, Taylor suggested that he would like to evaluate the mixture of liens in the system. He noted that CHSWC staff would explore whether this could be evaluated in house or whether an outside contractor would be needed, so a formal RFP was not requested.
In my next post I'll cover some of the others who provided comments at the CHSWC meeting.
Wednesday, June 12, 2013, 08:00 PM - Understanding the CA WC systemThe California Division of Workers' Compensation needs more time to finish regulations required under the 2012 SB 863 reforms.
That appears to be the bottom line to be gleaned from a DWC newline release of June 12, 2013 (see link below).
In late 2012 the DWC had issued emergency regulations on the following topics:
-Independent Medical Review (IMR)
-Independent Bill Review (IBR)
-supplemental job displacement vouchers
The QME regs, interpreter regs and voucher regs seem to be moving toward conclusion, as they have had multiple comment periods. But it is not clear that the DWC will meet the July 1 deadline .
So the DWC has now issued notices of emergency readoptions and requests for readoption for all six emergency regulations. essentially this extends the time to come up with final regs.
This goes to the California Office of Administrative Law (OAL), which will clearly approve.
The burden of formulating appropriate rules is a heavy one, and it's probably a plus that the DWC is taking a deliberative approach, with multiple comment periods.
Yes, it is true that not having final regs means that parties may have to face uncertainty as to how some procedures will ultimately be handled.
But I'd rather see them get it right than rush the process.
http://www.dir.ca.gov/dwc/dwc_newslines ... f#zoom=100
Stay tuned. In the next few days I'll be covering this week's meeting of the California Commission of Health, Safety and Workers' Compensation (CHSWC).
Wednesday, April 17, 2013, 10:40 PM - Understanding the CA WC systemLong term unemployment is one of the curses of the workers' compensation system.
Anyone deeply involved in the system has seen how long term disability affects individuals and their families.
Economic research now shows that long term unemployment makes it less likely that a worker will be hired. In a way that's not surprising, as most of us realize that it's easier to get a job if you have a job.
These sorts of issues are studied by economists, some of whom study Beveridge curves, an index that correlates job openings with unemployment. The classic relationship is an axis where when unemployment increases, job openings decrease.
But recent research by economists Rand Gayhad and William Dickens of Northeastern University in Boston show that workers out of work for more than 6 months have a very different pattern on the Beveridge curve.
As summarized by Matthew O'Brien in an excellent piece in The Atlantic titled "The Terrifying Reality of Long-Term Unemployment":
"Employers prefer applicants who haven't been out of work for very long, applicants who have industry experience, and applicants who haven't moved between jobs that much. But how long you've been out of work trumps those other factors."
Callback rates are significantly lower for workers unemployed for more than 6 months.
O'Brien's article documents that long term unemployment is more of a handicap in finding employment than "work churn", i.e. where a worker has switched jobs frequently.
O'Brien says that:
"Long-term unemployment is a terrifying trap. Once you've been out of work for six months, there's little you can do to find work. Employers put you at the back of the jobs line, regardless of how strong the rest of your resume is. After all, they usually don't even look at it."
In an era when many economists believe that high unemployment is structural and not merely cyclical, long term unemployment constitutes a great challenge.
With the demise of vocational rehabilitation, California's workers' comp system provides little assistance to the long-term unemployed.
It's little wonder that workers choose to hire attorneys, fighting for any scrap they can.
Here is a basic introduction to Beveridge Curves:
This is the link to The Atlantic article:
http://www.theatlantic.com/business/arc ... nt/274957/
And here is an interesting piece by Thomas Edsall in The New York Times,
"Are the Good Jobs Gone?":
http://opinionator.blogs.nytimes.com/20 ... s-gone/?hp