Tuesday, May 8, 2012, 09:29 PM - Understanding the CA WC systemCalifornia's workers comp market is becoming less concentrated, with 25 insurer groups having at least a 1% market share.
That's according to data compiled by the National Association of Insurance Commissioners and the California Department of Insurance.
According to a bulletin from the California Workers' Comp Institute, workers' comp premiums have grown to $7.8 billion after reaching a nadir of $6.9 billion in 2009.
CWCI attributes the reductions from a 2004 high of $16.1 billion in written premium (net of deductible credits) to "high unemployment, payroll reductions and job shifts during the recession, legislative reforms, falling claim frequency, and a soft market that kept premium rates low despite rising claim severity".
SCIF continues to have the highest premium volume, though its market share continues to be far less than it was 10 years ago. SCIF actually continued to lose market share in 2011, down to 12.9% in 2011 from 16% in 2010.
SCIF's shrinking role has been a painful experience from much of its longterm workforce, including its legal staff.
Market share gains were posted in 2011 by Hartford, Travelers, Fairfax (which acquired Zenith), Berkshire Hathaway, Liberty Mutual, Employers Holdings Groups, Zurich and Everest.
AIG (now Chartis) was an exception, shrinking a small amount.
Still, with so many carriers in the California workers' comp market, even substantial increases in premium (comparing 2011 to 2010) written by these carriers did not translate into large market share increases. For example, Hartford premium jumped 38% but its market share only inched up from 6.4% in 2010 to 8% of the 2011 California market.
Overall, this appears to be good news. A wide number of companies appear to continue to be interested in participating in the California workers' comp market.
We're not seeing an exodus of carriers. And the top 10 carriers are mostly national insurance companies (except SCIF).
Sunday, May 6, 2012, 10:21 PM - Understanding the CA WC systemShould judges be free to mine information on social media sites that pertain to claimants?
In an era when so much personal information may be found on the internet, is it appropriate for judges to do internet research about the parties appearing in their courtrooms?
I'm not aware of any instances in which this issue has arisen in California's workers' comp system, but it is likely to be coming.
Some claims adjusters and defense attorneys now check social media sites to see if they can uncover applicant activities that are inconsistent with what is reported by doctors or the claimant.
Last year a prominent defense attorney wrote a piece entitled "I Spy for Free". He noted that much can be gleaned now from Facebook and other sites.
Stuff that in the past investigators would have had to dig up now appears "in plain view" in some cases.
But is it appropriate for judges to go outside the scope of the evidence presented in the case?
This is an issue which has been raised now in connection with Social Security hearings held by federal administrative law judges who hear Social Security Disability and SSI cases for the Office of Disability Adjudication and Review.
An article in The Washington Times by Stephen Dinan notes that:
"The Social Security Administration last month told its disability-claims judges they are no longer to seek out information from websites when deciding cases — taking away a tool some of those judges say would help in uncovering fraud."
"Agency officials said reviewers can’t trust information posted online, and also said the mere act of typing in queries could compromise protected private information, so they shouldn’t try to access anything."
"Social Security’s ban covers all Internet sites, including social media such as Facebook."
"But Sen. Tom Coburn, Oklahoma Republican and a top taxpayer watchdog, said avoiding the Internet means giving up a valuable anti-fraud weapon — one that he said even federal courts have relied upon in some disability cases."
Apparently Social Security is taking the position that use of internet "information" is better left to fraud investigations of the Inspector General.
Efforts by ALJs to do investigations outside the courtroom can become a slippery slope. Perhaps judges should be allowed to look at internet material that is brought to their attention by a source.
Note that's different than the judge initiating his or her own searches.
Of course, Social Security is not adversarial, and there is no defense attorney at SSD/SSI hearings to represent the government's interest.
But to give the trier of fact wide-ranging investigatory license may start to confuse the role of the judge.
That's especially true in workers' comp, where employers and carriers are represented by attorneys who are capable of pointing out damning evidence.
The comp system should follow Social Security on this one.
Wednesday, April 25, 2012, 10:31 PM - Understanding the CA WC systemI recently settled a case that I'd handled for about eight years.
As I wrapped up some loose ends on the file, I printed out a log of "case activity".
The log was 33 pages long. There were about 800 activity entries. From the first meeting, filing the opening papers, to scanning in the settlement documents.
Entries of hundreds and hundreds of phone calls. Hundreds and hundreds of letters. Hundreds and hundreds of documents logged in or scanned.
And those are just the noteworthy calls, letters and documents. We wouldn't log or scan many of the random activities undertaken in the file.
I suspect the actual activity total was at least double if not triple.
Like a symphony played by an orchestra, there it was, laid out in the log. Notes from a receptionist, my secretary, my paralegal, our scheduler, and myself.
Responding to late checks, requests for advances, scheduling doctor appointments and depositions. Status discussions. Hand holding the applicant. Trying to explain why things happen. Explaining what may happen next. Taking information. Putting pieces of a puzzle together.
Putting out the "fires" which inevitably happen in cases.
In the workers' comp system, lawyers and judges get plenty of attention.
But in truth in many offices it is the staff that keeps the system running.
We're in the middle of what used to be "Secretaries Week", now commonly referred to as "Administrative Professionals Week".
Any office representing injured workers has a dedicated staff doing the sorts of things outlined above.
These are the workers who speak with the injured worker claimants, who hear the frustration and angst those workers voice. They are the folks who make many of the followup calls while the attorneys are in court and deposition.
It's not an easy job, but many of them do it year in and year out with aplomb. Many of them are incredibly dedicated.
They deserve our recognition and thanks. We couldn't do it without them.
Friday, April 20, 2012, 09:33 AM - Understanding the CA WC systemI found myself "in the dark" in a number of instances this week.
The experience got me thinking about how failure to serve documents leads to extra delays and costs in workers' comp.
Vendor costs, including costs of interpreters and copy services, have become hot topics for potential reforms.
I'm not one to go out and subpoena from day one all medical treaters that the worker has seen, all employment records and the like.
Why would I want to even consider doing that? Why stir up a hornet's nest and raise potential issues that might be unimportant or possibly even hurt my client?
But what is galling is when adjusters fail to serve medical reports on counsel as required by the WCAB rules. Some carriers seem to have a culture of not serving reports on a timely basis. Some don't even serve their own defense counsel with documents.
Some examples of how this plays out......
After I send the claims department of a major grocery chain a notice of representation and a request to be served with medical reports and documents, I wait for compliance...and wait. a followup contact effort leads nowhere. So I subpoena medical records and the claims file. More "frictional costs" now incurred. This self-insured grocer that prides itself on efficiency will now be saddled with copy service costs.
We're at a settlement conference at the board. Stipulations are drafted. The defense lawyer looks forward to resolution of a long-running case. I am recommending the resolution to my client. The client will not sign. He wants to know what is going to happen with his doctor's recommendations
Huh? It turns out that a slew of reports from the treating doctor have not been served on me (or defense counsel). Apparently requests for certain tests and treatments have been ignored, perhaps not even sent to utilization review.
Steps that could have been taken to move matters forward did not happen because the parties were in the dark. Records will now be subpoenaed. More copy service costs.
Another scenario? The phantom treater.
This time the culprit may not be the carrier. It's the phantom treater.
A worker whose case has been relatively quiet calls to ask about what is going on with the claim. Mentioning a doctor I've never heard of (and who has never been designated as PTP) it appears that doctor has multiple office locations and has cross-referred the client for a variety of tests and consultations. A call to the defendant reveals that they are not aware of this.
Treatment and tests appear to be ongoing in a parallel universe.
Undoubtedly these are doctor who intend to treat "on a lien". Perhaps one will eventually produce a letter showing that the client did designate then as PTP. For now it is phantom treatment.
More copies will be ordered to track all this down.
As you can see, it's complicated.
Thursday, February 2, 2012, 10:08 PM - Understanding the CA WC systemThe following is a true story:
One of the parties requested a panel QME in psychology. The request was filed with the Medical Unit in early March 2011. No response was received, and the parties therefore requested the WCAB issue an order requiring the Medical Unit to issue a panel.
A panel was finally issued by the Medical Unit over two months from when the request was filed.
A QME was selected, but the QME was unavailable to see the worker after multiple attempts to schedule the exam.
By that time it was over four months from the original request for a psych panel. A replacement panel was requested and issued some four and a half months after the original request.
The replacement panel QME could not schedule the worker until December 2011.
Defendant requested a second replacement panel on the grounds that the first replacement panel doctor was not available to do the exam within 60 days of the issuance of the replacement panel.
The applicant went to the December 2011 appointment but was turned away, being advised that the defendant had cancelled the appointment.
A declaration of readiness was filed regarding the panel selection issue. An expedited hearing was set for February 2012.
By that time it was almost a year from the initial panel request. The Medical Unit had not yet acted on the request for a second replacement panel.
It was pointed out to the WCJ that the California Constitution entitles the injured worker to an expeditious, unencumbered remedy, and that if the Medical Unit is understaffed and burdened with technology problems such that it is not able to function within its own rules, then the remedy is to allow the parties to obtain their own QMEs.
The applicant attorney noted that this had been done in a case reported in the California Workers' Comp Reporter at 35 CWCR 185, Fabry v. ACE (OAK 326189). In that 2007 case, handled by my law partner Michael Gerson, WCJ Christopher E. Hamilton ruled that the parties were permitted to select their own QME when the DWC delays designation. The Fabry case never went up on appeal.
At the February 2012 hearing the WCJ issued the following order:
"It is my belief that the panel QME system is broken. This case needs to come to resolution and this can only be achieved if both parties have an opportunity to obtain their own QMEs."
The sad thing about this true story is that versions of it are happening again and again. A toxic mix of bureaucratic delay and rule-based gamesmanship all too frequently stymies employers and applicants.
Perhaps the WCJ is on to an elegant solution. Let the parties develop the evidentiary record without the bureaucratic intermediary.
Policymakers, take note.