Tuesday, March 22, 2011, 09:33 PM - Political developmentsA federal government website on product safety has gone live:
The site, sponsored by the U.S. Consumer Product Safety Commission, may be useful to many workers.
Concerned about the safety of that tool you are using at work? Dependent on that device that a co-worker is using? Suspicious that the product being used may have been subject to safety recall?
The saferproducts.gov site may help you seek out useful information.
And over time it may help ferret out products that are poorly made or poorly designed.
In California workers' comp is generally an "exclusive remedy". With a few extremely limited exceptions, an employee can not sue his employer, even if the employer was negligent.
But where there is a "third party", i.e. someone other than the employer who causes or contributes to the injury, the worker may be able to sue that "third party".
At Boxer & Gerson LLP our civil trial lawyers John Anton and Gary Roth have often filed "third party" cases where a defectively designed or manufactured product caused an injury. These cases range from automobile product defect cases to various types of machinery defects to construction equipment defects.
Sometimes overlooked by workers' comp attorneys who are not attuned to identifying products liability cases, these claims can in some circumstances bring financial recoveries that far exceed workers' comp benefits. In California a worker can pursue a workers' comp case and a civil tort case against the designer, manufacturer, seller and distributor of defective products.
Saferproducts.gov gives individuals a tool to report product safety concerns as well as a source of information on product safety.
It's a good example of "smart regulation" which can help protect workers and consumers.
Yet, as noted in a recent L.A. Times article by David Lazarus, "Product-Safety Database a Hard Fought Victory for Consumers", this site has been fought tooth and nail by Congressional Republicans and business interests:
http://www.latimes.com/business/la-fi-l ... gle+Reader
Like battles surrounding funding for OSHA, there are business interests that would like to eviscerate regulations and consumer protections.
The irony of it all is that sites like this may eventually help prevent accidents in the first place, saving employers from unnecessary workers' comp costs.
Tuesday, March 22, 2011, 12:30 AM - Medical treatment under WCNote: this post includes a correction to an earlier version of this post;;;
I'm not surprised that I received some response to my recent post, "The Outliers", which focused on a recently released study of opioid prescribing practices in California workers' comp.
That study, by the insurance industry's California Workers" Compensation Institute, has been picked up in scads of articles in various media outlets.
But in the interest of fairness, I'll share some comments from readers who present different perspectives on the issue.
I offer their comments to further stimulate debate, realizing that on the one hand anything that comes between workers' and doctors is anathema to some, while on the other hand some in the employer community would be happy to place further limits on treatment access.
One injured worker writes to point out that not all workers on opiates for chronic pain are "dope fiends". Reacting to the perceived vilification of workers treating for chronic pain, he notes that
"'I've been on Opiates for 5-6 years now, since they're the only medication that works for me, a chronic pain patient.
My Doctor sees me once a month, writes me a prescription, and I take it to the pharmacy.
The article you posted about Doctors making money off of handing out them doesn't apply in my case, and I use my medication judiciously and as prescribed.
Please mention in your Blog that all truly injured workers aren't dope fiends who use drugs for fun. If I didn't have mine I wouldn't be able to use my hands or arms."
A friend forwards me a reaction to my post and the CWCI study sent to him from a medical staffer at California workers' comp insurer:
"As to this study, there is no doubt that there is a lot of abuse in prescribing psychotropic and pain medications. Duh. However, it is not surprising that 3% of the doctors write the bulk of these prescriptions. I would surmise that these are the pain management guys who, for all their other faults, end up with the worst patients and therefore their prescribing patterns are not necessarily abusive. Its like saying that the top trauma hospital has a higher death rate per admission than Podunk Community. It's a good bet that the top trauma hospital has a much sicker patient population than Podunk Community. Similarly, neurosurgeons pay a higher malpractice rate than chiropractors or weight-loss doctors.
Note correction: an earlier version of this post included a critique passed on to me from a commentator which misstated authorship of the CWCI opioid study. CWCI study co-author Alex Swedlow has kindly noted that the sole authors of the study were himself, John Ireland of CWCI and Gregory Johnson, Ph.D, an independent consultant specializing in insurance and healthcare issues. Arnold Milstein was not involved with this study. My apologies to the CWCI authors and Dr. Milstein for this error.
This industry doctor goes on to argue his point, which I'll share here even though I'm not vouching for his views:
"Not to say that abuse by the pain management doctors is not a problem. It is. However, the solution to this problem is not simply going after the prescribing patterns, but rather the whole paradigm that has accepted this whole notion of "chronic pain management" as a validated medical treatment program that should be available to anyone who has pain that doesn't get better with standard treatments. This is a shortcoming of the ACOEM Guides, the ODG Guidelines and the Labor Code and needs to be addressed with honest outcome studies. The reason this practice flourishes in the workers' comp system is because it is predicated on the false notion that these programs actually get people back to work. It's the same argument that has allowed spinal fusion and other devices of medieval torture to become a standard of care for so long, the lack of meaningful studies to the contrary."
But wait. There's more.
My friend forwards an article from the March 6,2011 New York Times, by Gardiner Harris entitled, "Talk Doesn't Pay, So Psychiatry Turns Instead to Drug Therapy":
http://www.nytimes.com/2011/03/06/healt ... inerharris
Making his point, my friend notes that in our society we have trended toward a pharmaceutical fix to problems. Psychiatrists generally can't make it by doing on the couch counseling and analysis. Even the state-adopted treatment guidelines seem to favor medications over physical therapy, gym memberships and such modalities. Whollistic approaches and Eastern medicine type approaches aren't often allowed. So is the system reaping what it has sowed?
Three different approaches. All food for thought.
Tuesday, March 15, 2011, 08:46 AM - Political developmentsThe video we've been seeing coming out of Japan's earthquake ravaged region is some of the most spectacularly disturbing ever seen.
The Hollywood spectacles like Independence Day and Deep Impact were really on to something, as we see humankind and its constructions tossed around like crumbs.
From the blog's mailbag comes a question: what about earthquakes and workers' comp? If someone is hurt at work during a California earthquake is that covered under California workers' comp?
In the event of a catastrophic earthquake, would California employers and insurers face astronomical liability? Sitting here in a home near the Hayward Fault, it's a question of more than passing interest for this blogger.
Does an injury at work during an earthquake meet the legal definition of "arise out of" and "in the course of employment (AOE/COE)?
It's a subject that has concerned some in the industry. For example, this analysis, "Assessing Catastrophic Exposures in Workers' Compensation Insurance" by Art Cadorine in ISO Review:
http://www.iso.com/Research-and-Analyse ... rance.html
But there's been surprisingly little litigation over earthquake-connected injuries in California. Work injuries during the Bay Area Loma Prieta earthquake or the Northridge earthquake have not resulted in published case law.
The issue actually arose years ago, in a 1927 California Supreme Court case, the Mostiero case (actually known as London Guarantee and Accident Company v. Industrial Accident Commission (Mostiero), 202 Cal. 239 (1927).
Mrs. Mostiero's husband was killed in 1925 when walls collapsed at a reinforced concrete building in Santa Barbara during an earthquake. Mr. Mostiero was performing services in the building as a janitor at the time.
The court noted that "There must be some connection between the injury and the employment other than the mere fact that the employment brought the injured party to the place of injury. There must be a causal connection between the employment and the injury which had its origin in a risk connected with the employment, and flowed from that source as a rational and natural consequence".
The court noted the concept of "force majeure". That's the Act of God concept, where, as a general rule employers are not responsible for lightning, storms, floods, tornados and the like.
But in Mostiero's case the Supreme Court was asked to review a finding by the Industrial Accident Commission that ruled the death compensable.
The finding of industrial causation was supported by evidence that established that the building had defective construction "which would not have fallen from the effect of the shock of the earthquake had it not been constructed of inferior materials". Although many local buildings had been destroyed or severely damaged, apparently other buildings in the nearby vicinity that were similar in character to where Mosteiro died had only slight damage.
On the other hand, there was evidence that the building's construction "was in accordance with the accepted standards and methods in use at the time it was built".
Mostiero produced engineering testimony questioning the quality of the concrete. A safety engineer testified that failure to tie the building together with structural steel, beams and girders contributed to the building's failure.
After wrestling with this evidence, the California Supreme Court noted:
"There can be no question in this case that the deceased by being compelled to perform his work in a building defective in construction was exposed to a risk of being injured in an earthquake which was greater than that to which the public generally in that vicinity was subject. It follows, therefore, that the injury received by him was one arising from his employment.
While the earthquake, an act of God, may have contributed to the injury, yet it was not the sole cause of such injury, and except for the intervention of some human agency might not have produced any injury whatever...."
Concluding, the court noted that:
"The destruction of the building in part having been contributed to by its defective construction, the whole occurrence was thereby humanized, and in fixing the liability of the parties hereto the part attributed to the earthquake must be eliminated as a contributing cause of the building's downfall."
Decided at the same time as Mostiero was the Wilson case, actually known as Enterprise Dairy Company v. IAC (Wilson) (1927), 202 Cal. 247.
Mr. Wilson, a truck driver for a dairy, had driven his vehicle into the employer's garage to pick up a load of milk. During the loading an earthquake occurred, and a brick wall of an adjoining building fell through the employer's roof. Wilson's injuries were lacerations from broken glass from the milk bottles he was loading.
The California Supreme Court found the injury compensable under workers' comp, reasoning that:
"...in the course of Wilson's employment he was subject to risks different from and in addition to those to which other persons were exposed who were within the area affected by the earthquake in question. His injuries from the broken bottle, therefore, arose out of employment. Within the meaning of the Workmen's Compensation Act, he was injured by the broken glass and not by the earthquake..."
OK. So not everyone who happens to be at work and is injured during a destructive temblor will be covered. But many will, particularly if the earthquake is just the start of a chain reaction that then involves injury from their tools or equipment.
But how is this to be sorted out?
For example, Boxer & Gerson LLP offices are in a restored Oakland downtown Beaux Arts building that was damaged in the Loma Prieta quake. FEMA money was used to restore and retrofit the structure, a former department store.
Should California eventually experience a massively destructive earthquake, we'll likely see a huge amount of litigation over individualized circumstances. Did the nature of the work make earthquake injury more likely? Were the unbolted file cabinets a factor?
Was the building up to code? What if the building fails even after a retrofit?
The litigation possibilites would be endless. Comp lawyers could become construction lawyers.
How the industry evaluates these risks and prices in these risks is beyond the scope of this post.
One thing is for sure. Should there ever be a quake of this magnitude,
workers' comp will be a battleground.
Wednesday, March 9, 2011, 08:45 AM - Political developmentsGovernor Brown and CASE, the union representing California Administrative Law judges and many state attorneys, have reached a tentative agreement on a new contract.
The contract, which will affect workers' comp judges and state attorneys, would end furloughs but require one day of unpaid leave per month.
Approval by CASE members will be required for the contract, which would run from April 1, 2011 to July 1, 2013. CASE has slightly over 3,000 members.
In the last several years CASE fought Schwarzenegger-imposed furloughs in court.
The furloughs amounted to pay cuts which put many of the workers' comp WCJs under financial distress. Many of those judges had left private law practice where they made more money only to find that even deeper financial sacrifices were being imposed on them.
The agreement between Brown and CASE also requires a 3% increase in worker contribution to pensions (from 6% to 9% for most CASE members).
Here is the text of a letter from the CASE bargaining team to its members, explaining the deal:
"Dear Bargaining Unit 2 Colleague:
This afternoon, the CASE Bargaining Team met with representatives from the Department of Personnel Administration ("DPA"), including DPA Director Ronald Yank. The parties have reached a tentative agreement for a new memorandum of understanding ("MOU"). The following is a summary of the agreement:
* Term: April 1, 2011 - June 30, 2013.
* Three-day-per-month furloughs end for all furloughed employees on April 1, 2011, conditioned upon the proposed MOU being ratified by CASE membership.
* 3% increase to employee pension contribution (total of 9% for Bargaining Unit 2 miscellaneous employees, 10% for Bargaining Unit 2 safety employees).
* 4% increase to top of salary step for all classes at end of contract (July 1, 2013), effective after employee has been at top step for a minimum of 12 months.
* All employees to receive 1.73 hours of additional leave credit per month (equal to 1% of gross salary per year) during the term of the MOU. This additional leave credit does not expire, and may be used or cashed out in the same manner as vacation leave or annual leave.
* One day of unpaid personal leave (under a program named "PLP 2010" by DPA) per month for 12 consecutive months beginning the pay period following ratification. Employees have until June 30, 2016, to use accrued PLP 2010 time, at which time it expires. PLP 2010 time must be used before any type of leave except sick leave, and has no cash value.
* Bargaining Unit 2 employees at State Compensation Insurance Fund are exempted from PLP 2010 days for the term of the contract in recognition of the successful CASE litigation and Insurance Code section 11873(c).
* Increased state health care contributions (80%-80% formula) for 2011, 2012, and 2013. Employer health care contribution for 2011 increased to $486 (employee only), $986 (employee plus one dependent), and $1,241 (employee plus two or more dependents). State health care contribution to be increased on January 1, 2012, and January 1, 2013, using the 80%-80% formula.
* Bargaining Unit 2 members will receive two additional professional development days (for a total of five professional development days) per fiscal year, to be used for either professional or personal development activities at the employee's discretion, and to be requested and granted in the same manner as annual or vacation leave.
* Consistent with legislation passed during the prior administration, the parties agree to delete Lincoln's Birthday and Columbus Day as state holidays.
* State agrees not to seek the unilateral imposition of furloughs during term of PLP 2010.
* State agrees to introduce and support legislation to continuously appropriate funding for state employee salaries and benefits during the term of the contract, to ensure employee salaries and benefits are maintained in the event of an untimely State budget.
* Employees hired after January 15, 2011, shall participate in a reduced (pre-SB400) defined benefit pension plan (2% at 60 formula).
* Contract protection ("Most Favored Nation Clause" or "Me Too Clause") which ensures that should any other bargaining unit currently without a contract receive a better overall compensation package, the members of Bargaining Unit 2 would be entitled to the difference.
* The remainder of the prior MOU, including side-letter agreements and the CUIAB caseload stipulation previously negotiated, were rolled over into the new contract.
The proposed MOU in no way limits our right to move forward with current or institute future litigation challenging the unilateral imposition of furloughs, or to seek back pay or other remedies for those members who have been furloughed.
We are presently working to make the language of the new contractual terms available on this website. The new language should be available shortly.
While this contract does little to address the structural pay disparity under which the state's legal professionals perform, the CASE Board of Directors believes that this agreement represents the best MOU that can be reached in the current political and fiscal climate.
CASE members should expect to receive a ratification ballot by U.S. Mail the week of March 14, 2011. Ratification ballots must be received in Sacramento by 5:00 p.m. on March 31, 2011. Ballots will be counted by an independent elections company on Friday, April 1, 2011, and the results announced immediately thereafter.
As always, your support of CASE and your colleagues in Bargaining Unit 2 is greatly appreciated.
The CASE Board of Directors"
Monday, March 7, 2011, 09:35 PM - Medical treatment under WCA few doctors doing an outsized share?
Where have we heard this before?
In 2010 CHSWC taught us that 3.9% of QMEs, often with sham "offices" in dozens of zip codes, were conducting 40% of evaluations :
That's a supersized share.
Now, courtesy of a CWCI study, we learn that the top 10% of doctors who prescribe Schedule II opioids for injured workers in California account for nearly 80% of all workers' comp prescriptions for these drugs.
That's a supersized share.
The CWCI study claims that these Schedule II opioids (such as oxycodone, fentanyl, morphine and methadone), are being prescribed for even minor back strains and orthopaedic sprains.
Expensive, addictive, and potentially lethal, these drugs are said to be prescribed more often and in more potent quantities by the most frequent prescribers.
It's a topic that makes me uncomfortable. I'm seen a couple of clients wreck their lives through their pain cocktails. At least one overdosed.
The study, by CWCI researchers Alex Swedlow, John Ireland, and Gregory Johnson, can be downloaded in pdf format here:
Longtime comp system vet Bill Zachry of Safeway charged in an e-mail blast that
"...the abuse of opioids is just a tip of the iceberg. Opioid abuse is part of a larger problem that a relatively small group of physicians and applicant attorneys perpetuate in Southern California. It is my understanding that this small group of physicians and attorneys also account for many of the Southern California medical treatment liens for treatment that was not performed in accordance with evidence based medicine and that was provided outside of the Medical Provider Networks."
Zachry went on to opine that
"it is my opinion, that due to the massive profits that they get from self-dispensing, there is an inappropriate financial incentive for doctors to do the wrong thing, and, as a result, they are destroying the lives of injured workers."
Zacrhry did not note it in his e-blast, but a recent RAND study noted that financial incentives may be playing a role in increased dispensing of controversial "medical foods" and "nutriceuticals", particularly in Southern
These developments will not make for appealing headlines for injured workers, attorneys and their friends in the medical community.
Outliers, be they be outsized QME mills or Dr. Feelgood pain-med prescribers, will come under increased scrutiny.
No amount of convention schwag or limo rides to the after-party should blind those in the system to what is going on. Abuses can kill the golden goose. We know that from past experience.
Zachry suggests that the best ways to stop opioid abuse is through a workers' comp prescription formulary and through limiting dispensing out of physician offices.
Among Zachry's suggestions:
-payers can achieve some limits by a "carefully crafted MPN contract"
-that employers and carriers have a pharmacy network with a formulary
More on those concepts in the future. Stay tuned.