Tuesday, May 22, 2012, 09:25 PM - Understanding the CA WC systemSometimes there is a great divide between what an injured work can receive in the workers' comp system and in the civil justice system.
Being a no fault system, workers' comp was not designed to "make workers whole". Although workers' comp benefits are payable regardless of who was at fault in causing the injury, those benefits do not fully compensate for wage losses, pain and suffering, loss of enjoyment in life and other such measures of damages.
Workers injured due to the negligence of "third parties" of due to defunctive products can pursue lawsuits in civil court to seek full compensation.
So it was in a case handled by two of my trial lawyer colleagues at Boxer & Gerson LLP in Oakland, Gary Roth and John Anton.
On May 12, 2012 it took a jury in federal court (U.S. District Court in San Francisco, Hon. Maxine Chesney presiding) just 10 hours of deliberation to return a unanimous verdict and award a Brentwood man and his wife $11.4 million for injuries sustained in a vehicle accident caused by defects on a Volvo garbage truck he was driving.
The $11.4 million award includes approximately $2.4 million for future medical expenses and loss of earning capacity, $7.5 million for pain and suffering and $1.5 million for his wife's loss of consortium.
The worker was a Teamster driver operating a garbage truck for Waste Management in Livermore, Ca. when the right front hub of the truck fractured and the right front wheel fell off. The worker's injury required 3 surgeries to date and perhaps more in the future.
The lawsuit filed by Boxer & Gerson alleged that the front hub was defective and that the garbage truck manufacturer, Volvo, and the components parts manufacturer were negligent, were aware of safety issues with the aluminum hubs, and did not warn users of the danger. In addition to Volvo, which built the cab and chassis, the complaint named Consolidated Metco, the manufacturer of the aluminum front hubs, and Wittke Manufacturing, an entity that modified the truck.
At trial, the 3 defendants alleged that the worker's employer was at fault for overloading the trucks and for not noticing cracks in the hubs. But after hearing expert testimony, the jury allocated only 6% of fault to Waste Management, the worker's employer.
62% of fault was assigned to Consoldiated Metco, 30% to Volvo Truck, and 12% to Wittke. 27 witnesses testified.
Thousands of such hubs are in service in trucks across the United States.
During the trial, Attorneys Roth and Anton argued that in spite of knowledge that the hubs were unsafe, the defendants had not sought to recall the aluminum hubs or notify users of the risk of failure during use.
Tort cases like this are an extra dimension that good lawyers can pursue to help some injured workers.
The case serves as a reminder that when an accident occurs, there may be a deeper story that needs to be explored.
Why did the accident occur? Are there design failures in the tools and equipment? Were items modified or remanufactured?
In some cases looking into these things may make a huge difference to a worker who has suffered a career ending injury, a worker who might otherwise receive a pitiful workers' comp recovery under a strict AMA Guides system.
That's the great divide. Kudos to Gary Roth and John Anton for helping span the great divide in this case.
Sunday, May 20, 2012, 07:18 PM - Medical treatment under WCIf there is one thing that leaves injured workers frustrated, it's the procedures that frequently result in treatment denials.
Between 2005 and 2010, medical cost containment expenses almost quadrupled. That includes expenses for utilization review and bill review.
Insurers assert that without cost containment procedures, medical treatment costs would be even higher, resulting in unsustainable premium increases.
The chorus of complaints about UR is particularly loud from workers who settled cases years ago and were awarded "future medical" as part of their case resolution.
From the employee's perspective, they bargained for medical as part of a settlement or as part of a court award. Not only may they be required to change doctors to a new physician on an employer network. Now they find that almost everything that is prescribed is either delayed or denied.
So the worker who had been represented years ago calls his former attorney, asking for help.
In some instances, the worker may find that his attorney has retired. But even where the attorney is still in practice, the worker may have trouble obtaining help.
The attorney is busy handling current cases. While some attorneys will get involved in treatment denial issues for clients whose cases were handled years ago, others simply are not staffed to take on these issues as a project unless they can be paid for doing so.
The problem here is that under current law, attorneys representing injured workers are not compensated in most situations.
An attorney who decides to help fight treatment denials may expend a substantial amount of time and effort on UR appeals. Time spent talking to the client, tracking down the medical reports and UR paperwork. Analyzing time frames to see if UR time limits were observed. Using the QME process to appeal denials. Possible court appearances.
And even if there's a victory for the worker, the victory may be on one treatment issue.
But this may be repeated again and again with ongoing treatment issues for this worker.
And that's only one worker.
Many applicant attorneys have represented thousands of workers over their career. So it's not hard to see why some applicant firms limit their involvement in challenging treatment denials. There simply are not enough hours in the day for many firms.
And that's probably fine with many insurers, who are happy that attorneys are not incentivized to fight denials on behalf of workers.
This is the problem that AB 1687 (Fong) seeks to address.
AB 1687 would require that when injured workers are given explanations as to why the insurance company modified, delayed or denied medical services, they also be given a description of available options to appeal such a decision.
Furthermore, AB 1687 would allow attorneys to be compensated a reasonable fee for their efforts on behalf of injured workers to enforce previously awarded medical treatment.
Supporters of the bill include the California Professional Firefighters and the California Labor Foundation.
The bill has already cleared the California Assembly Insurance Committee and the Assembly Appropriations Committee.
But with Governor Brown's likely unwillingness to sign piecemeal workers' comp changes, the bill's future may depend on what occurs later this year with other components of workers' comp reforms.
Here is a link the current text of AB 1687:
http://www.leginfo.ca.gov/pub/11-12/bil ... sm_v98.pdf
Tuesday, May 15, 2012, 08:51 AM - Political developmentsThe California Department of Insurance will be holding a hearing today in San Francisco on the WCIRB mid year filing requesting a hike in the advisory workers' comp rate.
THe insurance market is not required to follow WCIRB recommendations or the rate finding of CDI. Rates continue to be far, far below the levels that were reached in before the 2003/2004 reforms.
Still, with the economy in a slow-mo recovery phase, Insurance Commissioner Jones is likely to look carefully at the request for any hike in the advisory rate. Prior Insurance Commissioner Poizner repeatedly swatted down requests for hikes in the "pure premium" rate.
What do the applicant attorneys think about the request?
Here is a statement addressed to Chris Citko of CDI from Brad Chalk, CAAA President (prepared with the help of Mark Gerlach, an insurance expert who consults for CAAA):
"Dear Mr. Citko,
The California Applicants’ Attorneys Association recommends disapproval of the pure premium rate filing submitted by the Workers’ Compensation Insurance Rating Bureau on April 12, 2012. The filing not only ignores the decision made by the Bureau’s Governing Committee just 6 months ago to refrain from filing mid-year rate changes absent "extraordinary circumstances," but it also fails to comply with the directive from Commissioner Jones to include disaggregated medical cost containment data.
With regard to the justification for a mid-year filing, we see no conditions that could be considered "extraordinary circumstances." Nor does the filing identify any "extraordinary circumstances" that would justify this proposal. The Executive Summary of the filing does state that the "system’s underlying costs have continued to deteriorate," but that hardly qualifies as an "extraordinary circumstance." And in any case, several charts in the Executive Summary show just the opposite – that cost pressures are abating.
For example, Chart 1 displays the estimated ultimate indemnity + medical + ALAE cost per claim over the period 2005 through 2013. This graph shows increases between 2005 and 2009, but little or no change from 2009 through 2011 (2012 and 2013 are disregarded as these figures are only projections based on the WCIRB’s inaccurate trend estimates). Charts displaying medical costs per indemnity claim, Chart 8, and indemnity costs per indemnity claim, Chart 9, show the same pattern – increases between 2005 and 2009, then leveling off between 2009 to 2011.
The projected ultimate on-level severity trends for both medical and indemnity benefits also follow this pattern (pages A:B-25 and A:B-26). The projected on-level severity for both medical and indemnity increased between 2005 and 2009, decreased in 2010, and then increased a minuscule 0.3% in 2011. In view of the sharp decrease in the on-level severity trend over the past two years, we recommend that the selected severity trends of 3% for indemnity and 7% for medical be rejected. These selected trends are not based on any actuarial computation, but were arbitrarily selected without any statistical justification. Reducing these trend factors to reflect the current experience will eliminate most or all of the indicated change in the pure premium advisory rates..
With regard to cost containment data, Commissioner Jones’ Decision and Order for the January 1, 2012 Pure Premium Rates included the following directive to the WCIRB – "With this order I am directing the WCIRB to include disaggregated medical cost containment expenses of insurers and an analysis of that data in its next filing."
The WCIRB may contend that this directive was intended to apply to the next "annual" filing, and not to a mid-year filing. That argument misses the point. As explained by Commissioner Jones, reviewing this cost containment data is one part of analyzing the efficiency of insurers. Calendar year data from the WCIRB and limited transactional data from the CWCI both show that cost containment expenses are the fastest growing "medical" cost. In order to accurately identify the real cost drivers in the system, it is important that the WCIRB comply with the Commissioner’s directive.
In analyzing the efficiency of insurers, it is also important to look at the sharp growth in allocated loss adjustment expenses. Chart 10 shows that the average allocated loss adjustment expense per indemnity claim has nearly doubled since 2005. As we said in our comments regarding the January 1, 2012 Pure Premium Rate filing, the causes of this increase may be beyond the scope of this pure premium rate hearing. However, loss adjustment expenses have become a major cost driver in the system, and we recommend that the Commissioner direct the WCIRB to provide more detailed data on these expenses, as well as an analysis of that data, in its next filing.
Thank you for the opportunity to comment on this rate proposal.
S. Bradley Chalk, President
California Applicants’ Attorneys Association"
The hearing will be held at the CDI at 45 Fremont Street, 22nd Floor, starting at 1 p.m. today.
Sunday, May 13, 2012, 03:39 PM - Medical treatment under WCDo ambulatory surgery center owners do more surgery? If so, is that bad?
What are the implications for workers' comp?
On an anecdotal level, I recently had minor hand surgery at an ASC. The facility was incredibly efficient, with far less bureaucracy than I had experienced with even more minor procedures in a hospital setting.
In looking at the list of the doctors who own the facility and who practice there, I noted that many of the top orthopedic surgeons in the area were participants. Many of these are docs whose integrity and clinical judgment I greatly respect.
But a recently released study by the Workers' Compensation Research Institute of Cambridge, Mass. attempts to document a pattern of increased surgical utilization by owners of the centers.
Time will tell whether the statistical research done by WCRI on these issues holds up. The data studied was from Florida during 1997 to 2004, focusing on arthroscopies and carpal tunnel surgeries.
The study begins by noting that:
"Some studies have found that surgeon owners of ASCs perform more surgeries than surgeons who are not owners (e.g., Mitchell, 2010; Hollingsworth et al., 2010; Gabel et al., 2008; Lynk and Longley, 2002). These studies raise a concern about potential conflicts of interest that may influence treatment decisions and be inconsistent with high priority national goals of containing the rising costs of medical care while maintaining quality care."
The study, by Christine A. Yee points out that:
"In 2011, legislation was passed in California prohibiting doctors who own many kinds of medical businesses from referring their workers’ compensation patients to those businesses, or from using products from those businesses in their practices.2 This law, effective January 1, 2012, requires physicians who own these types of businesses, including ASCs, to inform insurers of their ownership. However, the law allows physician owners of ASCs to send patients to their own ASC for surgery, with payor preauthorization. Previously, California allowed self-referrals to ASCs, yet prohibited self-referrals to other types of entities."
Why do owned of ASCs do more surgery? There appears to be a recruitment effect, so that doctors who do lots of surgeries tend to buy into ASCs. Also, the study finds that surgeons can do more surgeries in ASCs, which are more efficient. Another reason claimed by the study are financial incentives. Yee claims that:
"They increased their surgery volumes by 14 to 22 percent due to the financial incentives, or 15 to 25 surgeries per year for the average surgeon who became an owner—compared with the number of surgeries that each of these surgeons performed prior to becoming an owner. This effect explained 14 to 21 surgeries in the difference in surgeries performed per year between owners and non-owners, or 18 to 33 percent."
Another factor was improvement in medical technology.
The WCRI charges that ASCs have tended to increase workers' comp volume:
"Relative to the types of patients they would have treated had they not been owners, ASCs provided more surgeries to patients covered by workers’ compensation, commercial indemnity insurance, and Medicare. These payors were higher-paying insurers at the time of the data. Due to owner financial incentives, the average surgeon increased the number of workers’ compensation patients by 17 to 23 percent and the number of patients with commercial indemnity insurance by 20 to 51 percent. Surgeons did not increase the number of patients covered by Medicaid and certain health maintenance organization (HMO) plans."
It is important to note that the WCRI study does not claim that the surgeries that were done were not necessary or that the surgeries had bad outcomes.
Specifically, the study says"
"This study did not address whether any of the additional surgeries (due to financial incentives, increased capacity from expanding one’s network, or ASC efficiency gains) were necessary or not. We also did not address whether they were cost-effective or not. If medically necessary and cost-effective, then increasing surgeon ownership would have improved access to surgical care for those who previously did not have access, in particular, those covered by workers’ compensation, commercial indemnity insurance, and Medicare. If the surgeries were not all necessary, then increasing surgeon ownership would be a cost driver and merit increased regulatory attention. This question deserves additional research using data on patient outcomes."
The WCRI study makes various general recommendations for payers and policymakers but notes that ASCs have many advantages, including costs.
Concluding, the WCRI study notes that:
"We speculate that physician ownership and the role of ASCs will become a bigger issue for injured workers and workers’ compensation payors in the next decade. The use of ASCs for orthopedic services and pain management services is growing rapidly (Koenig et al., 2009). ASCs may become as dominant a setting for services treating musculoskeletal and nervous system conditions as they are for eye surgery and gastroenterology today. Management companies of ASCs indicate orthopedics as the most desirable medical specialty in which to do business (Fields, 2011). Since many injured workers today are treated with these types of services, we may expect the issue regarding physician ownership of ASCs to receive more attention by regulators that oversee workers’ compensation systems in the future.
The efficacy of current policies intended to counteract adverse effects of physician ownership has not been determined. The optimal policy would curtail any adverse effects, while encouraging medical innovation focused on producing high quality and cost-effective care."
Wonks out there may want to download the study, which is chock full of data and graphs. (available for a fee) off of the WCRI website:
http://www.wcrinet.org/studies/public/b ... urgery.pdf
Sunday, May 13, 2012, 03:09 PM - Political developmentsEvery good play has its scenic backdrop.
Shakespeare's Hamlet had its Elsinore Castle in Denmark. South Pacific had its Bali Ha'i.
So it will be this year with California workers' comp, which will be on the table as the legislature struggles with deficits spinning out of control.
By the time you read this there will be few who haven't heard about California's $16 billion deficit .
A sour economy continues to result in poor revenue collection, pushing some hard choices to the fore.
How workers' comp will fare in budget revisions isn't yet known. Despite the fact that the system is supposedly user funded, that has not always spared the system from cuts. Under Schwarzenegger, judges and staff were furloughed, cutting hours and pay.
The choices ahead are grim, even if one of the proposed tax initiatives
(Munger or Brown) passes.
Civil courts are likely to see more cuts, putting the civil justice system in danger.
The pressure on workers' comp funding is likely to be extreme.
For a good assessment of some of the tough choices facing the Governor and legislature, I recommend this piece by John Myers, "Bigger deficit, bigger budget fight ahead":
http://www.news10.net/capitol/article/1 ... on-deficit