As we head toward the end of the year, Sacramento appears stuck in gridlock over the state's deepening fiscal crisis.

Many state workers are facing forced furloughs which could amount to a 10% pay cut. With California unemployment at 8.4%, hundreds of infrastructure projects are being halted due to the state's cash position.

Building trades, operating engineers, SEIU workers, state professionals....all find themselves being thrown under the bus as these events unfold.

Unfortunately, the magnitude of the problem is such that it's unlikely that the legislative solution will be to tax our way out of these cuts.

This is the backdrop for California's workers as we head into the holiday season.

In the next couple of days I'll be posting my take on the Top 10 developments in California workers' comp this year and doing a post on the recent Aguilar case (regular blog readers may have noticed a glitch over the last couple of days when drafts of several unfinished posts found their way to the net).

Meanwhile, the California Workers Compensation Institute has unveiled its study on medical provider network usage. No big surprises there.
CWCI documents the growing usage of MPNs in California workers' comp. That has been crystal clear to those in the comp community for several years.

Here's a link to the study:
http://www.cwci.org/research.html

Stay tuned and check back for the Top 10 events piece.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right corner below "Most Recent Entries")

Californians like to think of themselves as the ultimate trendsetters. From beach volleyball and skateboards to iPods and iPhones, it tends to happen here first.

But consider Alabama. There's a cutting edge place for you. Hey, it's not Santa Cruz, Venice Beach or Cupertino, but even Tuscaloosa can generate a trend now and then.

The State of Alabama plans to start surcharging obese state workers for part of their healthcare coverage. State workers who aren't fat will continue to get coverage for free. Those who don't meet the weight goal
(a body mass index of under 35 or lack of progress thereto) will be paying $25 per month.

Smokers are already surcharged in Alabama.

Other states have been experimenting with various financial incentives to promote wellness and reward healthy behavior.

It's doubtful that we'll see these kinds of penalties in
California workers' comp. As a statutory scheme, using a stick rather than a carrot will probably never fly politically.

But it would be interesting if an insurer offered incentive programs to disabled workers to help keep them in shape. In an era of rising medical costs, might it be cost effective for an insurer to actually give small financial incentives (slightly higher indemnity payments?)
to workers who met certain performance incentives? Incentives to workers who demonstrated motivation in their treatment regimen or progress dealing with associated problems such as obesity?

Granted, the current prevalence of utilization review and ACOEM guidelines seems to discourage such an approach.
Try being a lawyer fighting for a gym membership or a structured weight loss program for a worker who wants to keep in shape. Sometimes you can win these fights, but it's a battle.

But-thinking outside the box-wouldn't it be cost effective for a large insurer like SCIF to provide some gym or pool facilities or gym discounts where workers could keep in shape under proper supervision?

Silicon Valley companies have long recognized the advantages in this type of approach. In the comp arena it won't be effective for everyone. But getting the worker active is the whole concept behind functional restoration.

The problem is that most injured workers have no workout equipment and no concept of how to get started. Keeping motivated is hard and the risk of reinjury is higher without training. And many workers are afraid to be too active lest they be accused of comp fraud.

This is one concept that Arnold would understand.

Stay tuned.

Julius Young
www.boxerlaw.com (you can subscribe to the blog by clicking on the RSS reader button on the lower right column under "most recent entries")

Double dipping.

That can be good or bad.

One of my favorite things is being on a summer car trip, rolling into a small town just about anywhere (what a peculiarly American, 20th century endeavor!), finding a Tastee Freez or Dairy Queen. Going for a cone of soft ice cream, asking for a double dip.

That's good.

Less appealing are the double dippers at a party. Perhaps you remember the famous Seinfeld episode. George Costanza is caught re-dipping a chip into the dip after he has already taken a bite. Timothy objected, noting that it was like George was putting his "whole mouth in the dip". Defiant, George proclaimed "You dip the way you want to dip, I'll dip the way I want to dip".

What a jerk. Few of us want to kiss everyone we meet at the party food table.

Legally speaking, double dipping isn't usually favored.

Ask SCIF.

They're on the losing end of "Sandhagen".

The California Supreme Court has finally issued its opinion in State Compensstion Insurance Fund v. WCAB and Brice Sandhagen. The issue there was whether SCIF was legally entitled to double dip.

Where SCIF had available to it the utilization review process ("UR"), could SCIF use the Labor Code 4062 process instead (or in addition to) the UR process where it wanted to object to a medical treatment recommendation? To have allowed this would have meant that SCIF was entitled to double dip.

No, the California Supremes said. SCIF's process for objecting to a medical treatment recommendation was under Labor Code 4610, not under the QME dispute resolution process of Labor Code 4062. In so holding, the court noted that 4610 is a statutory scheme requiring employers to conduct utilization review when resolving requests for medical treatment where they choose to modify, delay or deny treatment.

In Sandhagen, SCIF did use the UR process, but not within the statutory timeframe. The court noted that Labor Code 4610 requires treatment decisions in a timely fashion, "not to exceed five working days from the receipt of information reasonably necessary to make the determination, and in no event more than 14 days from the date of the request for treatment" (with additional timeframes under limited circumstances).

Had SCIF prevailed, insurers would have been empowered to stall treatment requests in many cases. Even if it blew the UR timeframes (or even if its own UR reviewer approved the treatment), the insurer would have been able to object, forcing the worker to go through a lengthy QME process (requesting a QME, selecting a QME, waiting for the QME exam date, waiting for the QME report, and perhaps waiting for supplemental QME reports, a deposition of the QME, yada yada, yada).

That's why Sandhagen is an important victory for workers.

Kudos to Maugerite Sweeney of Redding, whose compassionate career on behalf of disabled workers now features a victory on their behalf at the California Supreme Court.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS button on the lower right column under most recent entries; in a post this week I'll be looking at the Top 10 Events in California Workers Comp for the 1st Half of 2008)

That's the question the California Division of Workers' Compensation is trying to answer.

It's a critical one, because without treating doctors the whole system collapses. Over the past few years a number of California doctors have decided to stop taking workers' comp patients. Some cited the increasing paperwork involved in report writing and responding to utilization review denials.

Others are essentially required to treat injured workers because of contractual obligations to medical groups which in turn have contracted with employers or comp insurers as MPNs. Some have even sued to try to break this yoke.

So how best to compensate doctors to minimize the impulse to leave the system? California currently uses a physician fee schedule but is considering a schedule based on Medicare's RBRVS, the Resource-Based Relative Value system.

Currently, the California fee schedule uses the 1997 AMA procedural codes for billing. It's a system not used by most other public and private payers.

To consider migrating to another system, the DWC contracted with the Lewin Group to do a study of the potential impact. The study was to assume "budget neutrality" (even though the final product might not be adopted in a budget neutral form).

Hearings will be held on the study next week. Monday May 19, 2008 the hearings will be held at 1 p.m. in the auditorium of the Ronald Reagan Office Building at 300 South Spring St. in LA.

On May 20 there will be hearings at 10 am in the auditorium of Oakland's Elihu Harris State Office Building at 1515 Clay St.

As with anything else in life, there would be winners and losers if the Lewin Group model is used to formulate policy. Surgeons and neurologists would see reduced payments. Anesthesiologists, chiropractors, psychologists, ER docs and physical medicine docs would see increases. Generally, fees for office visits would rise and surgical fees decrease.

Some doctors will not be happy campers under this model.

But the report addresses possible alternative formulas for compensating physicians, including adjustments for geographic areas.

Indexing fees according to different index formulas is a possibility.

This report will be of great interest to many physicians.

And since medical costs tend to be a major "cost driver", the formulas adopted will have consequences for system costs.

Don't plan on taking the report with you to the beach on Memorial Day.
But if you're a policy wonk, have at it. Here it is:
http://www.dir.ca.gov/dwc/RBRVSReport/RBRVS_May2008.pdf

Stay tuned.

Julius Young
http://www.boxerlaw.com/news.html

Here's a question for ya.

Suppose an insurer has a valid medical network (MPN). The MPN met all the notice requirements and technical MPN access standards.In our hypothetical the worker had not, before his work injury, predesignated in writing a doctor to treat in the event he was injured.

Can such a worker escape the MPN by treating with a doctor of his own choice?

Apparently yes. Labor Code 4605 says "Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting physician or any attending physicians whom he desires."

That's just what was done by the worker in the recent case of Jesse Chavez vs. Brinks, Inc and Liberty Mutual (LBO 389599). In a WCAB panel decision issued April 21, 2008, the WCAB reversed a decision of the workers' comp trial judge that had found the worker was entitled to treatment only through the MPN.

The WCAB panel ordered that "applicant is entitled to medical treatment from defendant, Liberty Mutual Insurance Company, only through the Medical Provider Network."

Bottom line? Chavez could treat with a doctor outside the network, but he'd have to pay for the treatment himself. The case doesn't deal with further ramifications of such treatment. such as whether TD would be due if the non-MPN doctor certified TTD status.

Will this decision open the floodgates for "treatment on a lien"? After all,that practice was a staple of the Wild, Wild West days of comp in the 1990s before the the SB 899 reform.

Not likely.

The decision does not stand for the proposition that Chavez could decline MPN treatment and self-procure treatment on a lien reimburseable by the defendant. After all, Labor Code 4605 refers to "at his own expense".

But if the insurer is not liable for payment, who is liable?

The WCAB panel in Chavez didn't reach this issue. Interestingly, though, in his recommendation in response to applicant's petition for reconsideration, Workers' Compensation Judge Charles C. Ringwalt
raised questions as to whether the applicant would be liable to pay.
Ringwalt cited Labor Code 3751(b) in questioning whether the doctor outside the MPN can collect from the applicant.

Labor Code 3751 (b) says:
"If an employee has filed a claim form pursuant to Section 5401, a provider of medical services shall not, with actual knowledge that a claim is pending, collect money directly from the employee for services to cure or relieve the effects of the injury for which the claim form was filed, unless the medical provider has received written notice that liability for the injury has been rejected by the employer and the medical provider has provided a copy of this notice to the employee. Any medical provider who violates this subdivision shall be liable for three times the amount unlawfully collected, plus reasonable attorney's fees and costs."

Thus, if liability for the injury has been accepted, it would appear the doc can't bill the worker. Could it be that the doctor gets stiffed?

But even if liability for an injury is accepted in a general sense, what if there are disputes about particular treatments (under ACOEM and UR, for example) or disputes about what body parts are involved in the injury? There would seem in such instances to be "non accceptance" of liability for injury, allowing the doctor to bill the worker (or pursue a lien). The panel in Jesse Chavez vs. Brinks didn't deal with these nuances, and further cases may establish the rules on this more definitively.

Many workers will get substitute or parallel treatment from group medical providers (if they have insurance) or public facilities (if they are uninsured).

But self-funding treatment?

Paying for your own treatment isn't a viable financial option for most workers. But for highly paid workers, it might make sense, particularly those workers who are experiencing difficulty with their employers on return to work or reasonable accomodation issues. Still, it's not likely to be a great strategy for boosting PD ratings (since the 4060/4061/4062 process controls).

Stay tuned.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right scrollbar under "Most recent entries")