Saturday, June 30, 2012, 10:55 AM - Medical treatment under WCAssuming that Obamacare isn't grievously wounded by Congressional de-funding and that a Romney win in the election doesn't result in repeal of the law, what effect will it have on workers' comp?
I've already received several client e -mails asking whether the Affordable Healthcare Act will have any affect on their cases.
For most California workers' comp cases that are in process, the answer is no. Injured workers now in the system probably won't see effects unless they remain in the comp system for years.
Longer term, Obamacare will probably have significant effects, but the degree of this is currently speculative.
For example, it's unclear what effect Obamacare will have on utilization of the comp system. Will some workers who did not have group health insurance or individual policies now have coverage and forgo claims that their conditions are industrial? That's a known unknown.
How will access to care be affected? That's also hard to gauge. If millions of people who lacked insurance coverage now gain coverage, who will treat those who are newly insured? Hospital ER doctors may no longer see waves of uninsured patients, but where will the doctors be recruited to the masses of the newly insured? Some of those may come from the comp system, particularly from the sort of primary care clinics that often now are front-line occupational clinic treaters. But again, this is just speculation.
California currently uses its own fee schedule to compensate treating doctors in workers' comp, but for years there has been talk of moving to an alternative payment system based on Medicare reimbursement methods.
Many of the specialized care doctors in California have resisted this move which would lower their pay but boost pay for primary care providers.
Schwarzenegger's Administration never got around to dealing with this and it's unclear what Jerry Brown's DWC intends to do on this issue.
Obamacare will make further adjustments to Medicare reimbursement rates. But California's workers' comp system may or may not transition from its unique reimbursement system to a Medicare based formula, so again the effects of the Affordable Healthcare Act aren't clear.
Longer term, Obamacare may have affects through emphasis on wellness
programs, research on effective treatments, efforts to increase use of electronic medical records, use of generic medications and other initiatives to increase medical efficiency.
Harder to know is whether workers' comp medical costs can be held down somewhat if more workers have their co-morbid conditions addressed.
For example, workers with underlying diabetes and obesity tend to have more complications in their medical treatment. Under California case law, workers' comp insurers can be held liable for treating the underlying medical conditions if that is necessary in order for the industrially related condition to be treated. Studies have shown that workers with co-morbid conditions tend to have longer recovery times and more complications in treatment. Bottom line: it's more expensive.
Again, this is one of the known unknowns. If the longer trend is to a healthier populace which has access to healthcare, perhaps there will be
long term comp cost savings from Obamacare. But not all American healthcare trends are treatment access driven; diet, lifestyle and demographic trends play a role as well.
Another significant impact of the Affordable Healthcare Act may be in the realm of workers' comp settlements. Currently, many injured workers are reluctant to settle their cases and give up the right to claim future medical care at the comp carrier's expense. This results in cases being carried on insurer books for decades, tieing up reserves.
If health insurers will not be able to deny insurance coverage to individuals with a preexisting condition, will an injured worker be able to cash out medical and then get treatment for that same industrial injury or occupational disease under the group health or private insurance policy?
If this issue has been addressed in the Obamacare statute or any regulations yet developed, I'm not aware of it (blog readers with any insight into this are invited to e mail me their information at firstname.lastname@example.org)
Currently, my understanding is that under current law, if a worker who is on SSD or SSI and therefore Medicare eligible settles with an MSA, regulations do not allow them to use the Medicare set-aside money to purchase health insurance with that money, i.e. the MSA money is to be used for treating the work related condition only, not for purchasing health insurance (of course, a worker could use other settlement funds to purchase health insurance or a policy that supplements Medicare).
If Obamacare survives, we'll likely see workers' comp settlements that will fund health insurance. But then again, perhaps regulations will clarify that workers' comp injuries remain an excluded pre-existing condition.
Under our current healthcare system, many injured workers have trouble getting any health insurance if they are not working. Individual coverage can be difficult to find even if the work condition is excluded from coverage.
So Obamacare may be a boon to those workers if subsidies are enough to help workers pay for coverage, particularly workers who are unemployed after an injury.
There are other aspects of Obamacare that merit mention, including the "Libby" provisions that may serve as a model for mass occupational diseases that is described in Jon Gelman's blog:
http://workers-compensation.blogspot.co ... l?spref=tw
Here is a link to a study by Paul Heaton at RAND on the effect of Romney's Massachussetts healthcare reform on the Massachussetts workers' comp system:
http://www.rand.org/content/dam/rand/pu ... TR1216.pdf
Sunday, June 24, 2012, 07:04 PM - Political developmentsWe may see some frowning faces behind the counter at the WCAB district offices.
California's budget crisis has resulted in Governor Brown entering negotiations with various state worker unions, of which SEIU Local 1000
is the largest.
Many of the clerical employees at the WCAB are members of Local 1000, which has around 93,000 members.
It's been unclear whether we would see another round of furloughs as occurred under the Schwarzenegger administration or whether there would be a 4 day workweek. Brown had proposed a 9.5 hour workday for 4 hours per week.
Instead, the deal apparently calls for a 5% salary reduction but allows for flexibility in time off.
Union members will be voting on the package this week.
Should the union membership vote to opposed and the deal fail, presumably furloughs or layoffs would be imposed.
Currently there has been no announced deal with the union which represents workers' comp judges.
Clerical staff and judges at the WCAB aren't immune to the economic challenges facing state government and many California workers.
But pay cuts do have heavy affects on many of those workers at the WCAB.
So if you see a frown now and then, that may be why.
Here is a link to the SEIU Local 1000 website which has more on the proposed deal:
http://seiu1000.org/2012/06/breaking-ne ... -state.php
Wednesday, June 20, 2012, 09:35 PM - Understanding the CA WC systemHumbert Hinkel stepped out on his porch.
He had nothing to hide. "I've got nothing to hide", he said to himself.
Unhappily, he turned down the Lady Gaga music after his surly teenager shouted obscenities about Gaga's music being ancient.
"I'll get in my all-solar vehicle and go to my workers' comp doctor to get my feel-well packet", he thought to himself. Humbert was in injured worker, caught up in the comp system.
Humbert grabbed his cane, held it, then put it back on the shelf. "I've nothing to hide, even though they may be watching", he muttered.
He knew they might be watching him.
They were always watching him. He knew that.
The day was beautiful. Flowers were in bloom.
Bees buzzed about, pollinating the neighbor's pear trees.Small birds swooped and dived.
"I have nothing to hide", he said to himself. He climbed in his all-solar
He rolled down the window. Something came over him. He remembered an old film, Network, starring Peter Finch. Finch's TV commentator character had snapped, encouraging viewers to open their windows and yell into the urban jungle "I'm mad as hell and I'm not going to take this anymore".
Humbert stood up in his all-solar vehicle, retracted the crystal canopy, and yelled, to the bees and wasps and birds " I hear you buzzing. I see you swooping and diving. You can't fool me. I know you are there, but I have nothing to hide".
The buzzing bees and wasps still buzzed. The birds still swooped and dived.
What was real and what was surveillance? The world had changed years ago.
Humbert knew that. He had nothing to hide, but the bees and birds were driving him crazy.
Humbert told me this story and asked that I show you this:
http://www.dailymail.co.uk/sciencetech/ ... lance.html
Monday, June 18, 2012, 10:23 PM - Understanding the CA WC systemBad behavior by attorneys and lien claimants continues to be a focus of the current California Workers Compensation Appeals Board.
In the past several years we've seen the WCAB cracking down where attorneys and lien claimants were alleged to have misled the WCAB. One high profile case has been against a well known Southern California lien rep:
Now the WCAB has tackled a situation where the attorney for the lien claimant had demonstrated a pattern of failing to appear or appearing late for court appearances, causing many continuances. The case is Ramona Anaya v. Port Hueneme Unified School District (ADJ3637516/OXN 0126293).
In six other cases the attorney had filed petitions for disqualification of the WCJ, all of which were rejected by the WCAB, which noted that "While we emphasize that we take allegations of bias and the appearance of bias by WCJs seriously, it is still the burden of the person alleging bias to come forward with facts to support those allegations. Without evidence, the allegations are just that, and no more."
In the Anaya case the attorney was sanctioned and costs were awarded to opposing attorneys.
The WCAB panel of Caplane, Lowe and Moresi noted that under Appeals Board Rule 10561 (b)(1) a violation can arise "when the party either fails to appear or appears late on one occasion without an excuse or demonstrates a pattern of failing to appear or appearing late at a conference or trial."
They conclude that "Thus, under Appeals Board Rule 10561, subdivision (b)(1), the issue of whether the party has a reasonable excuse is not relevant when the party demonstrates a pattern of late or missed appearances". In the case the judge found that six of eighteen continuances were due to the attorney and thus the judge's "focus on whether she had good reason for the continuances is not the issue. Nor is it relevant whether defendant caused any of the continuances because defendant's behavior is not at issue".
The WCAB noted that even leaving aside 3 missed or late appearances due to illness, there were 3 continuances caused by the attorney;s lack of preparation in addition to other continuances for vacation.
So the WCAB upheld the order of sanctions and costs.
It's another example of how the WCAB is clearly annoyed with the tactics and practices of some stakeholder representatives. Clearly the WCAB is out of patience with the loose manner of practice adopted by some advocates.
Friday, June 15, 2012, 10:04 PM - Political developmentsThe last several weeks I've had to follow the California workers' comp scene from afar.
That's because I was traveling in Asia. It's always interesting to engage another culture and see one's own through that other lens.
One can see wacky trends. For example, the nerdy girl look seems to be quite in vogue. Even girls who don't need glasses were wearing glass frames without......glass.
But what about more substantive stuff?
California's high speed rail venture is looking quite wobbly now. The Central Valley route under consideration and the economic assumptions of the project are questionable. But a ride on the Hong Kong airport train or Taiwan's high speed rail makes it crystal clear that high speed rail is a concept worth fighting for.
Like China, Taiwan has been in an infrastructure building boom. Freeways, subways and other transportation projects appeared to be in process al over Taipei and Hong Kong.
Here in the Bay Area, traffic often is snarled between San Francisco or Oakland and Silicon Valley. Taiwan's Silicon Valley is Hsinchu, about the same distance from Taipei as San Jose is from San Francisco. Yet, Taiwan's High Speed Rail zips passengers to Hsinchu in about 20 minutes, all in air-conditioned comfort with wi-fi.
There's plenty of shave ice with red beans awaiting as you disembark.
In Hong Kong an efficient train will whisk you off to Hong Kong Disneyland.
The huge Computex trade show was on in Taipei while I was there, and the HSR as it is called was filled with tech folks making their way to and from Hsinchu.
Hong Kong and Taipei are among earth's most densely populated cities, however.
So building Asian high speed rail clearly was a logistical feat, but one destined for success, with a huge potential ridership base.
One can't say the same thing about a California high speed rail plan that would begin by linking some smaller towns south of Fresno.
The urge to build more miles and at cheaper cost in the Central Valley may make sense to some planner or bureaucrat, but the risk is that even if the plan proceeds, it will be a train to nowhere with no riders.
And ultimately a system which never gets built.
I'll be sad if California's high speed rail never gets built. Should that be the case, it would appear to be a collective failure of imagination.
We can do a lot better than we are doing.